2022 MBKB 204, 2022 MBKB 204

Date: 20221027 Docket: CI 16-01-03826 (Winnipeg Centre) Indexed as: Perdue v. MacDonald Cited as: 2022 MBKB 204 COURT OF KING’ S BENCH OF MANITOBA B E T W E E N: LORI DIANE PERDUE, plaintiff, -and- ) COUNSEL : ) ) RICHARD BEAMISH ) for the plaintiff ) ) PETER BENJAMIN MACDONALD, defendant. ) THOR HANSELL ) DANIELLE BARCHYN ) for the defendants. ) ) JUDGMENT DELIVERED : ) October 27, 2022 BOND J. INTRODUCTION [ 1 ] On June 24, 2013, the defendant, (Dr. MacDonald), performed knee surgery on the plaintiff, (Ms. Perdue), to repair her torn meniscus and reconstruct her ruptured anterior cruciate ligament (ACL).

The ACL reconstruction surgery included the implantation of graft tissue from a deceased donor. Following the surgery, a serious infection developed in Ms. Perdue’s knee that required the removal of the implanted tissue and treatment with intravenous antibiotics. Ms. Perdue claimed that as a result of the unsuccessful surgery, and complications that followed, she was unable to work for an extended period. She claimed damages for pain and suffering, lost income, loss of career advancement, and other special damages. [ 2 ] Ms. Perdue claimed that Dr.

MacDonald failed to satisfy his duty to inform her of the nature of the surgery and its risks, and that he was liable in negligence.

SUMMARY [ 3 ] On June 13, 2013, Ms. Perdue suffered a knee injury while playing basketball with her son. It was not disputed that the injury involved a tear to the meniscus that required surgical repair. Ms. Perdue had suffered several other injuries to her knee before this, including a complete rupture of her ACL in 2011. The ACL had never been repaired. When Dr. MacDonald performed the surgery on Ms. Perdue’s knee on June 24, 2013 he repaired the meniscal tear and replaced the previously ruptured ACL with tissue taken from a deceased donor (allograft). An infection developed in the knee. It was treated with antibiotics but eventually the allograft had to be

removed. [4] Ms. Perdue claimed that Dr. MacDonald had not mentioned the use of an allograft to reconstruct her ruptured ACL when theydiscussed her injury and the proposed surgical treatment prior to the day of the surgery. Ms. Perdue said that she understood that herACL would be reconstructed from tissue taken from her own body (autograft). She said that although she signed a consent form on themorning of surgery, indicating her consent to the surgery using an allograft, she did so without being fully informed about theprocedure.

Further, she claimed that having been told of the use of an allograft only on the morning of surgery, she was deprived of theopportunity to conduct her own research into the use of an allograft. Ms. Perdue claimed that Dr. MacDonald breached his duty of carein obtaining her consent to the surgery. [5] Dr. MacDonald took the position that he did discuss the use of an allograft with Ms. Perdue in advance of the day of surgery andthat Ms. Perdue’s consent to the surgery was fully informed.

He also argued that even if an allograft was not discussed prior to the dayof surgery, he nevertheless met the standard of care for informed consent. He also argued that Ms. Perdue failed to prove that theinfection was caused by the allograft. [6] To succeed in her claim, Ms. Perdue must establish the following: 1. That Dr. MacDonald failed to satisfy his duty of care in obtaining Ms. Perdue’s consent to the ACL reconstruction using anallograft; 2. That a reasonable person in Ms. Perdue’s circumstances would not have consented to the ACL reconstruction using an allograft;and 3.

That the ACL reconstruction using an allograft was the cause of the infection. [7] For the reasons that follow, I find that Ms. Perdue has not established her claim. THE LAW [8] Where the patient has consented to the surgery performed but alleges that risks or other material information was not disclosedby the doctor, the claim is based in negligence rather than battery. (Reibl v. Hughes, (SCC), at pp. 821-892).

Liabilityfor a claim of lack of informed consent is based on a breach of the physician’s duty to give information to a patient. (Laing v.Sekundiak, 2015 MBCA 72 , at para. 80.) [9] The duty to disclose information to the patient in obtaining their consent to a surgical procedure includes (Laing at paras. 80-84): • Disclosing the nature of the proposed procedure; • Answering any specific questions posed by the patient; • Disclosing, without being questioned, material risks of the procedure; • Disclosing, without being questioned, any special or unusual risks in relation to the procedure; and • Providing, without being questioned, other material information. [10] The question of materiality is to be addressed from a patient-centric approach.

The test for materiality in relation to disclosure ofrisks and other information focuses on “…what the patient would want to know...”. The approach to be taken is an objective one. Thequestion to be answered is, what would a reasonable person in the position of the patient want to know? (Laing at para. 83; see alsoCiarlariello v. Schacter, (SCC).) [11] Expert opinion evidence regarding the nature and extent of a doctor’s duty to disclose information to a patient in obtainingconsent to a surgical procedure is admissible and may be helpful to the court, but it is not necessarily determinative.

Materiality of risksor other information must be determined by the court on the basis not only of expert opinion evidence, but also on an assessment of whata reasonable person in the position of the patient would want to know (Reibl at pp. 894-895). [12] Examples of the type of information that has been held to be material and encompassed in a doctor’s duty to disclose include: thata particular method of sterilization was not generally accepted in the medical community; and that a particular back surgery procedurewas experimental in nature (Laing at para. 85). [13] It has also been held that a doctor’s duty to disclose includes information regarding the availability of alternative treatments(Laing at para. 84). [14] To succeed in a claim of negligence for failure to obtain informed consent, a plaintiff must also establish that there was a causallink between the breach of the duty to disclose and the injuries suffered.

To meet this requirement the plaintiff must satisfy a modifiedobjective test. The plaintiff must prove that a reasonable person in their position would have declined the procedure or treatment hadthey been informed of the material information (Laing at para. 87). [15] Finally, to succeed in a claim of negligence for failure to obtain informed consent, a plaintiff must establish that the procedureconsented to caused the harm suffered. (Gerelus v. Lim et al., 2008 MBCA 89 , at para. 26; Stepita v. Dibble,2020 ONSC 3041 , at para. 84.) ANALYSIS

Has Ms. Perdue established that Dr. MacDonald failed to satisfy his duty of care in obtaining her consent to the ACL reconstruction using an allograft? [ 16 ] On June 13, 2013, Ms. Perdue injured her knee playing basketball with her son in their backyard. Her knee locked in a bent position and she was unable to straighten it, and any attempt to bear weight on it caused considerable pain. Her husband contacted Dr. David Hedden, an orthopedic surgeon, who was a friend of theirs. Dr. Hedden arranged for Ms. Perdue to see Dr. MacDonald, who has expertise in knee surgery. [ 17 ] Ms. Perdue saw Dr.

MacDonald on June 14, 2013 at the Pan Am Clinic in Winnipeg. At that time, Dr. MacDonald obtained a history from Ms. Perdue and examined her knee. It was Dr. MacDonald’s opinion that Ms. Perdue had suffered a “bucket-handle tear” to her meniscus, and that this injury required surgery on an urgent basis. It was not disputed that on June 14, 2013 Ms. Perdue and Dr. MacDonald also discussed surgical reconstruction of her ACL, which had been ruptured in 2011. [ 18 ] Ms. Perdue testified that during the June 14, 2013 meeting she and Dr. MacDonald discussed her lifestyle and activity level.

They also discussed that repair of the meniscal tear was urgent, that the meniscal tear could be repaired without reconstructing the ACL, but that reconstruction of the ACL would support the repair of the meniscus. She confirmed in her testimony that she did not feel rushed during this meeting with Dr. MacDonald and she did not leave feeling that Dr. MacDonald had not taken sufficient time with her. [ 19 ] Ms. Perdue testified that she had been keen to have her ACL repaired.

She was aware that it had been a problem for her for some time and she felt that since she was having surgery to repair the meniscus anyway this would be a good time to undergo the ACL reconstruction. Ms. Perdue is an airline pilot, and her career is very important to her; she did not like to take time off work. Her understanding was that the meniscal surgery was necessary and since she would have to take time off for that, it made sense to have her ACL reconstructed at the same time. [ 20 ] Dr. MacDonald’s testimony regarding the June 14, 2013 meeting was consistent with that of Ms. Perdue in many respects.

He testified that the meeting took between 20 and 25 minutes, and he reviewed her lifestyle, involvement in sports activities, and previous injuries with her. He testified that he discussed with her two options for the repair of the meniscus: one being to suture it and allow it to heal; and the other being to remove part of it. He testified that he also discussed with her the reconstruction of the ACL to support the knee resulting in a better prognosis. He confirmed that Ms.

Perdue had advised him that she would prefer to have her ACL fixed at the same time as the meniscal repair due to her work commitments. [ 21 ] Dr. MacDonald ordered an urgent MRI on Ms. Perdue’s knee, and that MRI examination was conducted on June 16, 2013, a Sunday. Dr. MacDonald received the diagnostic imaging report on June 17, 2013. It confirmed his diagnosis. He testified that he spoke to Ms. Perdue by telephone after reviewing the report. He testified that he likely would have spoken to her on the same day as receiving the report, although he could not be sure of the exact date and time. [ 22 ] Ms.

Perdue testified that following the June 14, 2013 meeting with Dr. MacDonald, it was her understanding that surgery to repair her meniscus and reconstruct her ACL would be booked if – and only if – the MRI confirmed Dr. MacDonald’s preliminary diagnosis and Dr. MacDonald’s

schedule would allow him to perform the surgery. [ 23 ] Ms. Perdue testified that it was only after the MRI that she was given a package of documents by Dr. MacDonald’s staff. These documents included a requisition for a pre-operative examination by a family doctor and a one-page handout document titled “Anterior Cruciate Ligament (ACL) Reconstruction” with the headings “P rocedure ”, “Risks” and “Return to Activity Guidelines (School/Work/Sports)” (the handout). It was Ms. Perdue’s recollection that she had been contacted by telephone by Dr.

MacDonald’s staff and asked to return to the office to pick up the package of documents. She admitted, however, that her recollection was not clear. It was Dr. MacDonald’s testimony that the package was provided to Ms. Perdue on June 14, 2013, when he met with her at the Pan Am Clinic. Dr. MacDonald’s testimony was supported by a document prepared by a member of his staff which appears to indicate that Ms. Perdue was notified of the date of her operation on June 14, 2013 and that the package had been given to her that day.

It seems likely that she was given the document on June 14, 2013, however, the exact timing was not particularly material. She certainly had the package of documents before June 18, 2013. This was clear because on that day she attended to a family doctor at a walk-in clinic for a pre-operative examination, with a form that had been included in the package. [ 24 ] The handout included in the package outlined the risks of the surgery in three categories: common (2-5%), less common (1-2%), and rare (<1%). Included in the common category are pain, stiffness, continued instability, swelling, and numbness.

Included in the rare category are blood clot, vascular injury, and anesthetic complications. Infection is identified in the middle category as a less common risk with an incidence rate of 1-2%, and is explained as follows: Infection: Signs of infection include fevers, chills and red/painful/hot wounds with discharge. These are usually treated with antibiotics. Infections deep in the knee may require surgery to wash out the joint and remove the graft. Infection may also spread to the blood (sepsis) requiring intravenous antibiotics . [Emphasis added.] [ 25 ] When asked about this handout in direct examination, Ms.

Perdue said that she could not say for sure that she had received it but she did not deny it. She then said that she had received it but could not recall if she had read it thoroughly. In cross-examination, Ms. Perdue acknowledged that she “would have” read the handout, including the described risk of infection. She testified that she understood this to be reference to the “normal” risk of infection in relation to any surgery. Ms.

Perdue was evasive, but ultimately, she did agree that she was aware of the risk that she could develop infection deep in the knee that would require surgery to wash out the joint and remove the graft. [ 26 ] Two expert witnesses testified about the known risks of ACL reconstruction, as well as other matters to which I will refer below. Dr. Duong Nguyen of Toronto testified on behalf of Ms. Perdue. Dr. Mario Taillon of Saskatoon testified on behalf of Dr. MacDonald.

Each was qualified to give expert opinion evidence regarding orthopedic surgery, specifically as that specialty related to informed consent in ACL surgery. [ 27 ] Based on the testimony of Dr. Nguyen and Dr. Taillon I find that the risk of developing infection following ACL reconstruction was accurately described in the handout. Both Dr. Nguyen and Dr. Taillon testified that the incidence of the development of infection was between 1% and 2%.

They both testified that this incidence rate included surgical site infections such as those caused by staphylococcus bacteria which are more commonly seen, and those caused by other organisms, as well as infections deep in the knee. Both Dr. Nguyen and Dr. Taillon testified that the risk of infection of ACL reconstruction was the same for procedures using allografts as for procedures using autografts. [ 28 ] Ms. Perdue testified that after her initial appointment with Dr. MacDonald, she researched ACL reconstruction on the internet.

She testified that based on that research, she understood that her ACL could be reconstructed using tissue taken from her hamstring or from her “good” knee (patella). After conducting this research, and after talking with acquaintances who had undergone ACL reconstruction themselves, she concluded that it would be preferable to use tissue from her hamstring rather than her other knee. [ 29 ] Ms. Perdue testified that on the morning of surgery, she asked Dr.

MacDonald about where he intended to get the graft tissue from - her hamstring or her patella - and it was only then that he told her that he intended to use an allograft. [ 30 ] The testimony of Ms. Perdue and of Dr. MacDonald are diametrically opposed on this issue. Dr. MacDonald testified that he did discuss an allograft with Ms. Perdue prior to the day of surgery. Ms. Perdue testified that he did not. [ 31 ] In her direct examination, Ms. Perdue said that in her meeting with Dr. MacDonald on June 14, 2013, there was no discussion regarding how the ACL reconstruction would be done.

She testified that the discussion was mainly about the repair of the meniscus, and its urgency, although there was discussion about whether to proceed with the repair of the ACL. [ 32 ] When it was suggested to her in cross-examination that her meeting with Dr. MacDonald on June 14, 2013 included discussion of how the ACL repair would be done, she responded that she did not think the discussion was detailed because the MRI had not yet been done and Dr. MacDonald was not sure that his

schedule would allow him to do it. She stated, “I don’t recall there being a discussion about how the ACL would be reconstructed.” When asked two more times whether the discussion included options for the ACL reconstruction, she answered, “Not to my recollection,” and “I don’t recall it at this time”. However, when it was specifically put to Ms. Perdue that Dr. MacDonald explained to her about the use of an allograft as an option, she was adamant that he did not. I found Ms. Perdue’s insistence that an allograft was not discussed perplexing given her lack of recall about the discussion generally. [ 33 ] Dr.

MacDonald testified that he did discuss with Ms. Perdue the options for reconstruction of the ACL prior to the day of surgery. He testified that he discussed with her the pros and cons of using an allograft versus autograft for ACL reconstruction, as was his usual practice. He testified that he recommended an allograft to Ms. Perdue because an allograft was generally preferable for patients in Ms. Perdue’s age group. An autograft was generally recommended for younger patients whose physical and sports activities place a higher demand on the knee. An allograft was somewhat less resilient than an autograft.

An allograft was generally preferred for patients over 40 years of age because the demand on the knee was generally less, and there was an increase in morbidity with an autograft. That is, there was more pain following surgery, and risk of destabilization of the area from which the graft tissue was taken. Recovery time was generally shorter with an allograft, and Dr. MacDonald was aware that Ms. Perdue wanted to get back to work as soon as possible. [ 34 ] Dr. MacDonald acknowledged that he did not prepare a visit note in relation to the June 14, 2013 meeting with Ms. Perdue.

His record of the meeting was a follow-up letter to Dr. Hedden that he prepared the same day. Dr. MacDonald’s testimony regarding the June 14, 2013 meeting with Ms. Perdue appeared to be mostly consistent with the three-paragraph letter, which was filed as an exhibit in the trial. In the letter, Dr. MacDonald confirmed that he discussed with Ms. Perdue “…the fact that she needs her ACL fixed...”.

He stated, “…We will assess her after the MRI but she would prefer, because of her work commitments, to have both the ACL and the meniscus done at the same time and we will try and accommodate her to the best of our scheduling.” There was no mention in the letter of any discussion about how the reconstruction of the ACL would be done. Dr. MacDonald explained that it was unnecessary to refer to the details of how the surgery would be performed in the letter to Dr. Hedden. [ 35 ] In support of his assertion that he had discussed the use of an allograft with Ms. Perdue, Dr.

MacDonald testified that he would not have ordered the allograft tendon from Tissue Bank Manitoba (Tissue Bank) had its use not been discussed with her. The allograft was ordered by way of a requisition dated June 18, 2013. [ 36 ] Documents prepared by Dr. MacDonald’s staff indicate that on June 14, 2013, the surgery was (at least tentatively) scheduled to proceed on June 24, 2013.

A booking request form was sent to the Pan Am Clinic on June 18, 2013 indicating that a tibialis posterior allograft would be required and the Tissue Bank requisition for a tibialis posterior allograft was faxed to the Tissue Bank on June 18, 2013. It seems clear that, at least by June 18, 2013, Dr. MacDonald was planning to use an allograft to reconstruct Ms. Perdue’s ACL. In direct examination, Dr. MacDonald testified he had never booked an allograft without first discussing it with the patient. [ 37 ] It was clear that in giving his testimony Dr. MacDonald was relying very much on his usual practice.

There was nothing untoward about him doing so and the Court is entitled to accept that evidence ( Gerelus at para. 64 ). [ 38 ] Dr. MacDonald did testify that he had a specific recollection of discussing the use of an allograft with Ms. Perdue at their first meeting on June 14, 2013. When it was put to him that in his examination for discovery he had stated that he discussed the use of an allograft with Ms. Perdue during their phone call regarding the MRI results on June 17 or 18, 2013, he said that the discussion had begun on June 14, 2013, and continued during the subsequent phone call. Dr.

MacDonald’s recollection of when that discussion occurred was less than clear, and his explanation of the inconsistency seemed somewhat contrived. Having said that, Dr. MacDonald testified that his discussions with Ms. Perdue followed his usual practice. That is, at some point prior to the day of surgery he would have discussed with her the ACL reconstruction surgery and the source of the graft required for it. The only evidence to the contrary was that of Ms. Perdue. [ 39 ] Ms. Perdue presented as an intelligent and thoughtful person. I did not get the impression that she intended to mislead the Court.

However, it appeared to me that her recollection generally, and in particular in relation to her discussions with Dr. MacDonald, was

tainted by the unfortunate events that followed. Ultimately, Ms. Perdue suffered a serious infection that required surgical procedures to treat the infection, including removal of the graft. She experienced considerable pain, problems with her knee and other medical issues for some years afterwards. These difficulties had a significant impact on her career, her family, and her overall wellbeing. She attributed these difficulties to the failed ACL reconstruction surgery, which failure she traced back to the allograft. In my view, Ms. Perdue’s recollection of the discussions with Dr.

MacDonald and information she received prior to the surgery are coloured by that perspective. She cannot help but look back through that lens. [ 40 ] I have already mentioned that Ms. Perdue testified that she had a poor recollection of her discussions with Dr. MacDonald on June 14, 2013, and the phone call after the MRI. Despite this, she insisted that Dr. MacDonald did not mention an allograft. She said that she was so sure of this because if he had, she would have researched it. Ms. Perdue testified that she had researched ACL reconstruction on the internet and had learned about autograft.

When she was asked in cross-examination whether she had come upon references to allograft during her internet searches, her responses were evasive. She testified that she had been focused on the question of whether her hamstring or patellar tendon should be used. When pressed, she responded to the effect that if there was reference to allograft she did not pay attention, “It did not register for me” and “It did not jump out at me.” In my view, these responses were equivocal and coloured by hindsight. Ms. Perdue did not want to acknowledge any awareness of allograft prior to the day of surgery.

Her testimony on this point lacked credibility. [ 41 ] Although there were some weaknesses in Dr. MacDonald’s testimony, dependent as it was on his usual practice, I find that it was more likely than not that he did discuss the use of an allograft with Ms. Perdue prior to the day of surgery. [ 42 ] Having come to that conclusion, I would add that even if Dr. MacDonald did not discuss an allograft with Ms. Perdue in advance of the day of surgery, I nevertheless find that his discussion with Ms. Perdue on the day of surgery met the standard of care for informed consent. [ 43 ] According to Ms.

Perdue, on the morning of surgery, she asked a nurse about whether the surgery would involve the implantation of tissue taken from her hamstring or patellar tendon. The nurse referred the question to Dr. MacDonald, who spoke to Ms. Perdue in the pre-operative holding area of the Pan Am Clinic. [ 44 ] Dr. MacDonald had little recollection of this conversation and could not recall the specific questions Ms. Perdue asked him. He testified, however, that he answered her questions. He also testified it was his practice on the morning of surgery to review the information already provided to the patient. [ 45 ] Ms.

Perdue testified that when she asked Dr. MacDonald if he was planning to use her hamstring or her patellar tendon, he told her that he had ordered an allograft, and he told her that was tissue taken from a deceased donor. He told her he recommended the allograft because her recovery from the surgery would take less time. She testified that she asked him about the risk of infection, and he told her about a very small risk of disease transmission, such as HIV or hepatitis. He told her the risk was “one-in-a million”. Ms. Perdue testified that she asked Dr.

MacDonald if he would recommend the use of an allograft to his wife or daughter, and he said he would. She said she trusted him, and agreed to the surgery using an allograft. [ 46 ] Ms. Perdue indicated her consent to the surgery with the use of an allograft by signing the consent form. The consent form had referred to ACL reconstruction, and the words “with tibialis posterior allograft” were added to it by a nurse on the morning of surgery. Ms. Perdue initialed beside those words. [ 47 ] In my view, what Dr. MacDonald told Ms. Perdue on the morning of surgery was accurate and complete. [ 48 ] Both Dr.

Nguyen and Dr. Taillon confirmed that the use of an allograft for a patient like Ms. Perdue was common and generally preferred. They also testified that there was no difference in the levels of risk of infection in relation to each, despite the theoretical risk of disease transmission to which Dr. MacDonald referred. [ 49 ] Dr. Nguyen testified that in his view, Dr. MacDonald should have informed Ms. Perdue that there had been issues historically with infections in allograft tissues that are difficult to treat.

However, after it was pointed out to him that the handout referred to the risk of infection deep in the knee that might require removal of the graft, he acknowledged that Ms. Perdue had been informed about the risk of this type of serious infection. [ 50 ] Ms. Perdue argued that the discussion about an allograft on the morning of surgery could not satisfy the duty to inform because she had no opportunity to research allograft or consult with friends and family about it, and she was under pressure to agree to the surgery. Dr. Nguyen and Dr.

Taillon agreed that discussions leading to informed consent should occur in advance of the day of surgery. However, they testified that it was well recognized that sometimes patients forget earlier discussions and must be re-informed on the morning of surgery. Obtaining consent is an ongoing process, that may begin earlier, but may only be completed on the morning of surgery. [ 51 ] It is recognized that patients may feel under pressure to consent if the consent discussion is left to the day of surgery. Ms.

Perdue testified that she felt “all eyes were on her” when she raised questions about the source of the graft on the morning of surgery. She also testified that Dr. MacDonald told her that if she did not consent to the allograft, the surgery would have to be postponed because there was not enough time to do the surgery using an autograft. Dr. MacDonald denied saying this, and I prefer his testimony on that point. He testified that using an autograft takes no longer that an allograft and Dr. Taillon confirmed this. Dr.

Nguyen testified it may take 10- 20 minutes longer to harvest tissue from the patient’s own body. I accept that the surgical plan could have been changed from an allograft to autograft without causing delay. [ 52 ] I conclude that Dr. MacDonald disclosed material risks and information to Ms. Perdue regarding the ACL reconstruction surgery using an allograft. He thereby satisfied the standard of care for informed consent. Has Ms. Perdue established that a reasonable person in Ms. Perdue’s circumstances would not have consented to the ACL reconstruction using an allograft?

[53] Even if Ms. Perdue had established that Dr. MacDonald had not met the standard of care for obtaining informed consent, I wouldfind that her claim fails at the second step of the test. In my view, a reasonable person in the position of Ms. Perdue would haveconsented to the ACL reconstruction using an allograft regardless. Ms. Perdue needed to have her meniscus surgically repaired on anurgent basis. Reconstruction of her ACL was recommended to provide her knee with support and to improve the chances of success withthe repair of the meniscus. Ms.

Perdue had experienced ongoing instability in her knee even before the injury to her meniscus on June13, 2013. She was keen to have her ACL repaired, and she wanted to minimize the amount of time she was off work. One of theadvantages of the use of an allograft was a shorter recovery period. Dr. Nguyen and Dr. Taillon both testified that the use of an allograftwas generally preferred for patients over the age of 40. A reasonable person in Ms. Perdue’s position would have proceeded with theallograft. Ms. Perdue has not proved otherwise. [54] Ms.

Perdue testified that she would not have proceeded with the surgery if she had been told in advance that Dr. MacDonaldplanned to use an allograft. She testified that if she had been aware of that plan, she would have conducted research and would havefound information that would have dissuaded her from proceeding. To support this claim, Ms. Perdue sought to introduce in evidencemultiple documents printed from the internet after the fact. However, I ruled that the documents were hearsay and inadmissible. [55] Ms.

Perdue’s claim that she would not have proceeded with the surgery had she been told in advance of the day of surgery that anallograft would be used must be viewed with skepticism. It was tainted by hindsight. (Stepita at para. 86.) [56] I find that a reasonable person in Ms. Perdue’s position would have proceeded with the surgery. Has Ms. Perdue established that the ACL reconstruction using an allograft was the cause of the infection? [57] It was not necessary for Ms. Perdue to prove with scientific precision that the infection she suffered was caused by the allograft.

An inference of causation may be drawn from the evidence presented without direct scientific proof. (Athey v. Leonati, (SCC), [1996] 3 SCR 458, at para. 16.) In determining whether Ms. Perdue has established causation I must not demand expertopinion evidence that conclusively identifies the graft as the source of the infection. The absence of such an unequivocal opinion doesnot mean that causation cannot be proved. What is required is a “…robust and pragmatic approach…” to the facts. (Snell v. Farrell, (SCC), [1990] 2 SCR 311, at paras. 30-35.) [58] After the infection developed in Ms.

Perdue’s knee, she was first treated with some oral antibiotics. Then, when her conditiondid not improve, on September 5, 2013 she underwent a procedure consisting of irrigation and drainage of the knee. Samples of tissuewere tested at a provincial laboratory and the following organisms were identified: bacteroides fragilis and pseudomonas aeruginosa. Itwas not disputed that these organisms are not commonly found to be the cause of surgical site infection following orthopedic surgery. [59] In his testimony, Dr. MacDonald acknowledged that the allograft tendon could have been the source of the infection.

However,he testified that there are other possible sources and that pseudomonas aeruginosa can also be found in lakes and hot tubs. Dr. MacDonald’s testimony in that regard was consistent with the opinion expressed by Dr. John Embil, an infectious diseases specialistworking in the Department of Internal Medicine at the Winnipeg Health Sciences Centre. Dr. Embil was not called to testify, but in aletter to Dr. MacDonald dated September 20, 2013, (and filed as an exhibit on consent), Dr. Embil stated: Lori [Perdue] presents with a surgical site infection caused by Pseudomonas aeruginosa.

The source of which is uncertain, but maybe[sic] from the cadaveric tissue used for the anterior cruciate ligament repair or alternatively, it maybe [sic] related to a surgical siteinfection or possibly even stitch abscess as a result of either the stitch itself or alternatively, contamination at the time of swimming…. [60] It was not disputed that the organism that caused Ms. Perdue’s infection was anaerobic and could be found in lakes. However,Ms. Perdue took the position that the infection could not have been as a result of wound contamination from swimming in a lake. In hertestimony, Ms.

Perdue insisted that she had not been in the water at her lakeside cottage after the surgery except during the Labour Dayweekend in 2013. Symptoms of infection had already started to show by early August, and by August 20, 2013, she had been prescribedantibiotics. Ms. Perdue testified that by the Labour Day weekend, the infection had worsened, and she was suffering chills and fever. She went into the lake to cool off, wearing a life jacket and with the help of her husband. She testified that she only went into the waterat the lake that one time.

However, there was some evidence that contradicted her assertion. [61] Dr. MacDonald made a note on September 19, 2013 (the day upon which the graft was removed) stating: “Lori [Perdue] nowremembers going swimming about six weeks postop when she developed the minor wound irritation and we wonder about this as anetiology for the pseudomonas since she was relatively well for the first six weeks.” When cross-examined about this note, Ms. Perdueacknowledged that she had spoken to Dr. MacDonald about going in the lake.

However, she believed she had been clear with Dr.MacDonald about when she had been in the lake and testified that she did not recall saying that it had been six weeks after surgery. [62] Further, a note made by Ms. Perdue’s physiotherapist on August 28, 2013, indicated that Ms. Perdue had told him that she hadbeen “in the lake.” Clearly, this note was made before the Labour Day weekend, and so contradicted Ms. Perdue’s testimony aboutwhen she went in the lake. When cross-examined about this note, Ms.

Perdue stated that she would have only dangled her feet in thewater and would not have submerged her knee in the lake. She insisted that she was very careful not to do so. [63] I did not find Ms. Perdue’s testimony on this point to be credible. Clearly, she did not want to concede the possibility that the

source of her infection could be the lake at her cottage where she swam. Both Dr. MacDonald’s note and that of the physiotherapistcontradicted her testimony that the only time she had been in the water at her cottage was during the Labour Day weekend. [64] Ms. Perdue argued that even if it were the case that she had been in the water at the lake, this could not be the source of theinfection because the surgical wounds were closed within six weeks following the surgery. Ms. Perdue pointed to visit notes, dated July17, 2013 and August 20, 2013, where Dr. MacDonald noted that the incisions were “well healed”.

However, there was evidence that asuture that should have dissolved but did not had to be removed from one of the incisions on August 19, 2013. Dr. MacDonald testifiedthat this retained suture could have served as a conduit for the infecting organism, and there was no evidence to contradict thattestimony. Moreover, Dr. Embil’s letter of September 20, 2013 referred to the stitch as being a possible source of infection. [65] Ms. Perdue argued that the only reasonable conclusion was that the graft was the source of the infection. She argued that anyother conclusion was founded on speculation. I disagree.

I conclude that although Dr. MacDonald conceded that the allograft tissuecould have been the source of the infection, it was not the only possible source. Upon a robust and pragmatic assessment of theevidence, I find that Ms. Perdue has not discharged her burden to establish on a balance of probabilities that the allograft caused theinfection. Ruling on Internet Evidence [66] Other than the letter of Dr. Embil, referred to above, Ms. Perdue did not present expert opinion evidence in support of her claimthat the source of the pseudomonas aeruginosa was the allograft tendon. Rather, Ms.

Perdue sought to introduce documents printed fromthe internet to support her claim. During the trial, I ruled that evidence to be inadmissible, and indicated I would provide my reasons forthat ruling in this judgement. [67] Ms. Perdue sought to introduce a document printed from the internet that purported to be a warning letter directed to the CEO ofRTI Biologics, Inc. (RTI), outlining concerns identified by the United States Food and Drug Administration (FDA) regarding an RTIfacility located in Alachua, Florida. (The allograft tendon implanted in Ms.

Perdue’s knee was obtained from RTI.) The warning letterwas dated October 19, 2012 and referred to an inspection of that facility conducted from June 25 to July 11, 2012. The letter waslengthy and set out a number of concerns. It referred to the identification of pseudomonas species detected at the facility. It referred topseudomonas aeruginosa once as follows: 1a.

From January 1, 2011 to June 30, 2012, the finished product packaging swab cultures of your Sports Medicine products detectedPseudomonas species on 70 separate occasions, including one incident of the pathogenic species of Pseudomonas aeruginosa…. [68] Counsel for Ms. Perdue acknowledged that the warning letter was hearsay evidence sought to be introduced for the truth of itscontents. He argued, however, that it was evidence akin to a business record and that it ought to be admitted upon application of theprincipled exception to the hearsay rule established in R. v.

Khan, (SCC). [69] The principled exception to the hearsay rule requires that two requirements are met: necessity and reliability. (R. v. Khelawon,2006 SCC 57 , at paras. 1 and 42.) [70] Ms. Perdue argued that necessity was made out because the Court would have no jurisdiction to compel the attendance of awitness from RTI or from the FDA. Ms. Perdue argued that reliability was made out on the basis that the document was created in thecourse of the operation of the FDA in fulfilment of its mandate which included the regulation of “Biologics,” which included tissue andtissue products. Ms.

Perdue sought to establish this reliability through further documents printed from the FDA website. [71] I am not satisfied that either component of the test for the admissibility of hearsay evidence was met. [72] Regarding necessity, I find that the lack of jurisdiction of this Court to issue a subpoena that was enforceable in the United Statesis not determinative. Ms. Perdue presented no evidence of any efforts made to contact or attempt to communicate with a representativeof the FDA. [73] Even if necessity were made out, however, I find that Ms. Perdue’s application fails on the second prong of the test.

The test forthreshold reliability for the introduction of hearsay evidence requires that the Court be satisfied that there are “…circumstantialguarantees of trustworthiness…” in relation to the evidence. (Khelawon at para. 51.) Circumstantial guarantees of trustworthiness mustthemselves be demonstrated by way of admissible evidence. In my view, pages printed from the internet – even from a website thatappears to be that of a United States government agency – cannot satisfy that requirement.

These documents are themselves hearsay, andpresumptively inadmissible. [74] Even if the website pages indicate that the FDA is responsible for the regulation of human tissue-based products includingtendons, they do not provide any context to the preparation of the warning letter upon which Ms. Perdue sought to rely. For a businessrecord to be admissible either under The Manitoba Evidence Act, C.C.S.M. c. E150, or under the common law, evidence must bepresented to demonstrate that the records were made in the usual and ordinary course of business.

Furthermore, the content of the letterlacks meaning in the absence of evidence to put it in context. [75] Finally, there is the question of relevance to this case. Even if the requirements of necessity and reliability were met, there wasno evidence linking the warning letter or its contents to the matter before the Court. The allograft tissue used to reconstruct Ms. Perdue’sknee was obtained by Manitoba’s Tissue Bank from RTI. There was no evidence, however, about when or where the tissue wasprocessed. [76] For these reasons, the documents that Ms. Perdue sought to introduce into evidence are inadmissible.

CONCLUSION ON LIABILITY

[77] For the foregoing reasons, I find that Ms. Perdue has: failed to establish that Dr. MacDonald did not satisfy his duty of care inobtaining her consent to the ACL reconstruction using an allograft; failed to establish that a reasonable person in Ms. Perdue’scircumstances would not have consented to the ACL reconstruction using an allograft; and failed to establish that the ACL reconstructionusing an allograft was the cause of the infection. Her claim is dismissed. PROVISIONAL DAMAGES ASSESSMENT [78] This provisional damages assessment presupposes, of course, that my conclusions set out above are incorrect.

That is, I willconsider the question of damages assuming that, contrary to my findings above, Dr. MacDonald was negligent in obtaining Ms. Perdue’sconsent to the ACL reconstruction using an allograft, that a reasonable person in her circumstances would not have consented to thesurgery and that the surgery using an allograft was the cause of the infection. Proceeding on the basis of these assumptions still requiresconsideration of issues of causation. [79] Ms. Perdue sought damages for loss of income on the basis that she was off work for a number of years following the surgery,and argued that Dr.

MacDonald is liable for all of the resulting loss of income. Dr. MacDonald took the position that even if he wasnegligent, the damage award should be limited. [80] The issue to be determined for the purposes of assessing damages for loss of income is one of legal causation. That is, if Dr.MacDonald was negligent, is he responsible for all of the losses that Ms. Perdue claims? [81] The test to be applied is the “but for” test. (Clements v.

Clements, 2012 SCC 32 , at paras. 8-16; Athey at paras. 14-17.) The applicable law is succinctly stated by the Supreme Court of Canada in Clements: [46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “butfor” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff hasestablished that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’sinjury, where (

a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors,each possibly in fact responsible for the loss; and (

b) the plaintiff, through no fault of her own, is unable to show that any one of thepossible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “butfor” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [82] The material contribution to risk test (referred to by Ms. Perdue’s counsel) is not applicable in this case. Ms. Perdue mustestablish on a balance of probabilities that her injuries and resulting losses would not have occurred “but for” Dr. MacDonald’snegligence. This means that, Ms.

Perdue must establish “…a substantial connection between the injury and the defendant'snegligence…”. (Clements at para. 21.) [83] A tortfeasor is liable for the plaintiff’s injuries even if those injuries are unexpectedly severe owing to a pre-existing condition.

This is the “thin skull” rule. (Athey at para. 34.) However, a tortfeasor should not be held liable for injury that is caused by the pre-existing condition. [84] As explained in Athey at para. 32: …The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have beenin absent the defendant’s negligence (the “original position”). However, the plaintiff is not be placed in a position better than his or heroriginal one.

It is therefore necessary not only to determine the plaintiff’s position after the tort but also to assess what the “originalposition” would have been. It is the difference between these positions, the “original position” and the “injured position”, which is theplaintiff’s loss…. [emphasis in original] [85] And further in Athey at para. 35: …The defendant need not put the plaintiff in a position better than his or her original position.

The defendant is liable for the injuriescaused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which theplaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage:… [citations omitted; emphasis in original]

[ 86 ] Ms. Perdue had problems with her left knee for some time prior to the 2013 surgery. She suffered a partial tear of her ACL in 2001 and was off work for several months as a result. She underwent arthroscopic surgery at that time although the ACL was not reconstructed. In 2008 she consulted a doctor (not Dr. MacDonald) because of pain and swelling in her knee and an MRI revealed a complex tear of her meniscus and a partial tear of the ACL. She had recurrent flare-ups of pain in her knee, in particular when ascending and descending stairs.

She regularly wore a brace for recreational activities and in 2009 she had some discussion with a surgeon regarding a reconstruction of the ACL, but did not proceed. In 2011, Ms. Perdue slipped on ice which resulted in a dislocation of her knee. An MRI taken at the time revealed a complete rupture of her ACL, as well as a complex tear of the meniscus. She was left with pain and feelings of instability in the knee, but at the time opted not to proceed with surgery to reconstruct the ACL. Ms.

Perdue continued to experience pain and swelling as well as feelings of instability in the knee in early 2013, six months prior to the surgery. [ 87 ] As described above, Ms. Perdue was referred to Dr. MacDonald in 2013 when she injured her knee resulting in a bucket handle tear of her meniscus. This injury required surgical repair to allow Ms. Perdue to walk. Ms. Perdue agreed to have her ACL reconstructed at the same time. Ms. Perdue had been expected to be off work for approximately four months following the surgery, but in fact was off work for an additional 13 months. During that time, she saw Dr.

MacDonald on a number of occasions. Dr. MacDonald’s visit notes document her recovery from the infection as well as recurrences of pain and swelling. To address this, on January 23, 2014, Ms. Perdue underwent arthroscopic surgery involving debridement in the knee joint to investigate and address chondromalacia of the patella. Through 2013 and 2014, Ms. Perdue regularly participated in physiotherapy and exercise to strengthen her knee. She saw Dr.

MacDonald regularly in 2014 who indicated in a visit note on October 15, 2014 in relation to her knee, “I do not think she is functionally unstable.” [ 88 ] On November 24, 2014, Ms. Perdue was deemed fit to return to work and she did so. She began with the flight simulator and then moved on to flying airplanes. [ 89 ] Ms. Perdue hurt her knee again in or about mid-May 2015. She testified that the injury occurred as she was leaving an airplane in London, England. She had to exit the plane by going down some stairs and was carrying suitcases.

Later that day, while exiting a shuttle bus, her knee gave way and she fell down. She testified that her knee swelled up afterwards, and she treated it with ice. She was able to fly the plane back to Canada the following day but did not work thereafter. [ 90 ] Ms. Perdue did not return to work until November 2019. [ 91 ] Ms. Perdue saw Dr. MacDonald following the May 2015 injury. In his testimony, and in notes he made at the time, Dr. MacDonald expressed the opinion that any giving way of the knee and related pain that Ms. Perdue was experiencing was not related to the failed ACL reconstruction.

This is consistent with the opinion of Dr. Taillon who testified that generally, infection in the knee joint will result in increased stiffness rather than laxity. I find that the infection and removal of the graft did not make the May 2015 injury more likely to occur. Ms. Perdue had been living with an ACL deficient knee since 2011. The failure of the ACL reconstruction surgery in 2013 did not result in increased instability in the knee. [ 92 ] Following the May 2015 injury, Ms. Perdue continued to report knee pain and a feeling of instability in her knee. A physician’s statement form completed by Ms.

Perdue’s family doctor on July 22, 2015 relative to Ms. Perdue’s claim for Air Canada group insurance benefits indicates that Ms. Perdue was unable to work due to instability in her knee. Ms. Perdue continued to see Dr. MacDonald who documented her reported pain and feelings of instability, and noted his observations of good range of motion and stability in the knee. He identified ongoing chondromalacia and patellofemoral issues as the cause of her pain. [ 93 ] Dr. MacDonald testified at trial that Ms.

Perdue’s disability after her recovery from the infection was related to chondromalacia of the patella, not ACL deficiency. He testified that any instability of the knee was related to the pre-existing condition of her knee and not the infection or removal of the ACL graft. Dr. MacDonald also testified that although infection can be toxic to cartilage, the infection Ms. Perdue suffered had been treated aggressively to reduce the risk of damage. Dr. MacDonald denied that the infection had weakened Ms. Perdue’s knee or left her with brittle cartilage.

Obviously, this opinion must be viewed with skepticism, as it is offered by the defendant in this case. However, it is consistent with the testimony of Dr. Taillon who confirmed in cross-examination that infection can cause damage to cartilage, but that this would result in stiffness, not laxity. He was not asked about chondromalacia. [ 94 ] Ms. Perdue offered no expert opinion evidence to support her claim that the failed ACL reconstruction or the infection caused the instability or the pain she experienced in her knee after the surgery.

Expert opinion evidence is not mandatory, of course. ( Snell at paras 30-35 .) However, even on a robust and pragmatic approach to the facts, I find that Ms. Perdue has fallen short of establishing a substantial connection between her knee issues and the failed surgery and infection. The difficulties experienced by Ms. Perdue were attributable to a pre-existing condition. [ 95 ] The evidence establishes that Ms. Perdue experienced recurrent pain, swelling and feelings of instability in her knee for a period of years prior to the ACL reconstruction surgery performed by Dr. MacDonald.

Her knee was ACL deficient before the surgery, as it was afterwards. This was her “original position.” Dr. MacDonald is not required to place her in a better position than that. ( Athey at para. 32 .) [ 96 ] There is a further complicating circumstance. Some time in 2015 (it is not clear when), Ms. Perdue was prescribed painkillers and sleep aid medication by her family doctor. Ms. Perdue developed a dependency upon these medications, specifically Seroquel, Percocet and clonazepam.

Although it is not clear on the evidence at what point this dependency developed, it is clear that it began to manifest in the summer of 2016, and likely before. On September 29, 2016, Ms. Perdue’s husband wrote to her family doctor raising concerns about the effects of the prescribed medications on his wife. He testified that he had observed the effects of the medication and felt that he had to raise his concerns with her doctor. [ 97 ] In May 2017, Ms. Perdue sought help for her drug dependency and attended the Aurora Recovery Centre for a 30-day treatment program.

Correspondence and file notes that were made exhibits during the trial indicate that Ms. Perdue’s drug dependency was a significant concern for both Air Canada and the Civil Aviation Medicine

section of Transport Canada in relation to her fitness to return to work. The documents indicate that following her attendance at the Aurora Recovery Centre, she was expected to participate in an in-

house recovery program before she would be permitted to return to flying. [98] Between May 2015 and November 2019, Ms. Perdue was assessed as “unfit to fly due to medical reasons” by Dr. Martin Fogel, aCivil Aviation Medical Examiner. Based on the documentation filed on consent in this trial, it seems that both Ms. Perdue’s drugdependency and her knee issues were identified as affecting her ability to return to work as a pilot. It seems clear that even if Ms.Perdue’s knee had not prevented her from returning to work, by the summer of 2016 her drug dependency certainly would have. [99] In my view, as well, Dr.

MacDonald should not be held responsible for the drug dependency that Ms. Perdue developedfollowing the surgery. The evidence regarding how and when those medications were prescribed was scant. What is clear however isthat none of those medications were prescribed by Dr. MacDonald. The Seroquel was apparently prescribed to Ms. Perdue to treatinsomnia, a condition she had experienced before the 2013 surgery. Ms. Perdue saw a doctor for insomnia related to restless legsyndrome in 2005. She testified she had ongoing sleep issues into 2011. [100] I conclude that if Dr.

MacDonald has been found liable in this action, Ms. Perdue would be entitled to damages for loss of incomefor the period of time between the surgery in June 2013 and her return to work in November 2014. Ms. Perdue’s subsequent injury, herknee pain caused by chondromalacia, and her development of a dependence on the medications she was prescribed by another doctorcannot be attributed to Dr. MacDonald. [101] Counsel are in agreement that damages for loss of income and pension for the period ending with Ms. Perdue’s return to work onNovember 24, 2014 amount to $91,000.00 [102] Counsel jointly submitted a

summary of the Manitoba Health Services Commission (MHSC) billing history relative to this case. It covers expenses from July 2013 to May 2017. Given my findings regarding damages outlined above, I would limit the MHSC accountto expenses incurred up to November 24, 2014. The total amount is $4,154.05. [103] The cases submitted by Ms.

Perdue regarding an appropriate award for general damages suggest an amount in the range of$100,000.00-$140,000.00 Each of the cases filed, however, involves a finding that the defendant’s negligence was the cause ofconsiderable long-term negative impacts on the plaintiff’s mobility and quality of life. Given my finding in this case, that even if he wasnegligent, Dr. MacDonald should not be held responsible for all of the difficulties Ms. Perdue has experienced since, in my view, adamages award of considerably less is appropriate. Ms.

Perdue certainly experienced pain and loss of enjoyment in life for a period oftime following the surgery, during which she had to undergo ongoing intravenous antibiotic treatment for the infection, as well asarthroscopic surgical procedures. In my view, if Dr. MacDonald had been found negligent, a general damages award in the amount of$25,000.00 would be appropriate. LIMITATION PERIOD [104] Although it is unnecessary to do so given my findings above, for the sake of completeness, I will briefly address Dr.MacDonald’s argument that Ms.

Perdue’s claim was statute barred because it was commenced more than two years after the surgery atissue. Dr. MacDonald acknowledged that in 2016 when Ms. Perdue commenced her lawsuit, claims brought against medical doctors fornegligence were generally governed by s. 61 of The Medical Act, CCSM c M90, in force at that time. This provision required that anyaction for negligence or malpractice related to professional services be commenced within two years “…from the date when, in thematter complained of, those professional services terminated.” Ms. Perdue’s claim was filed within that time limit. Dr.

MacDonaldargued, however, that Ms. Perdue’s claim, based on the failure to obtain informed consent, is a cause of action distinct from othermedical negligence claims and therefore it should be treated differently. He argued that Ms. Perdue’s claim had to be commenced withintwo years after the cause of action arose pursuant to s.2(1)(

e) of The Limitation of Actions Act, C.C.S.M. c. L150, that was in force atthe time. (The Medical Act has since been repealed, and a new limitations regime established in Manitoba pursuant to The LimitationsAct, C.C.S.M. c. L150. These amendments play no

part in the arguments of the parties in this case.) [105] Dr. MacDonald pointed to the case of Barrett-Cramer v. Winnipeg Regional Health Authority et al., 2006 MBQB 152 ,where McCawley J. recognized that courts have drawn a distinction between a cause of action based on informed consent and one basedon a physician’s duty of care. However, the question of whether s. 61 of The Medical Act in force at the time defined the applicablelimitation period was not addressed in the decision. It is of little assistance. [106] I see no basis upon which to find that Ms.

Perdue’s claim in this case falls outside of the ambit of s.61 of The Medical Act. Ms.Perdue’s claim based on lack of informed consent, in my view, falls within the broad realm of negligence or malpractice to which theprovision applied. I have concluded that Ms. Perdue’s claim was not statute barred due to the expiration of the limitation period. CONCLUSION [107] As set out above, I have concluded that Ms. Perdue has not established her case against Dr.

MacDonald; her claim is dismissed. [108] If the parties cannot agree to costs, they may bring the matter before me for determination. ______________________________J.