Robbins v. Bajwa and Gross, 2020 NSSC 311

SUPREME COURT OF Nova Scotia Citation: Robbins v. Bajwa and Gross , 2020 NSSC 311 Date: 20201201 Docket: Hfx No. 418068 Registry: Halifax Between: David Robbins Plaintiff v. Dr. Arpun Bajwa and Dr. Michael Gross Defendants D E C I S I O N Judge: The Honourable Justice James L. Chipman Heard: September 21, 22, 23, 24, 28, 29, 30, October 1, 5 and 6, 2020, in Halifax, Nova Scotia Counsel: Raymond F. Wagner, Q.C., Lyndsay C. Jardine and Nicholas C. Hooper, for the Plaintiff Brian W. Downie, Q.C. and Joseph M. Herschorn, for the Defendant, Dr. Arpun Bajwa Colin D. Bryson, Q.C. and Bhreagh M.

MacDonald, for the Defendant, Dr. Michael Gross By the Court: Introduction: [ 1 ] David Robbins was in his late forties and experiencing right hip pain. His family physician referred him to orthopaedic surgeon Dr. Michael Gross. Dr. Gross performed uneventful total hip replacement surgery in early 2012. After two days of routine post-operative hospital recovery, Mr. Robbins was discharged home. His recovery progressed well for about a week. While exercising, Mr. Robbins then experienced intense pain in his lower legs. [ 2 ] The next day Mr. Robbins called Dr. Gross’ office.

The recorded message stated he was away; two other phone numbers were provided. Mr. Robbins called one of the numbers and reached the on-call orthopaedic resident, Dr. Arpun Bajwa. There is disagreement between the parties as to the telephone conversation between Mr. Robbins and Dr. Bajwa. Mr. Robbins says he was re-assured such that he did not seek immediate medical attention. Dr. Bajwa says she did not re-assure Mr. Robbins but, rather, directed him to Dr. Gross, his family physician or the emergency department. [ 3 ] Mr. Robbins did not attend the emergency department until three days later.

When he did, he was in a worsening condition and seen on an urgent basis. He was referred to vascular surgery and after several surgeries blood flow was restored to his right lower leg; however, his left leg function could not be restored. Ultimately, Mr. Robbins’ underwent a below the knee left leg amputation. [ 4 ] Mr. Robbins alleges medical malpractice on the part of the Defendant doctors. He says Dr. Bajwa gave advice falling below the standard of a first year orthopaedic resident. The claim against Dr. Gross is that, in effect, he should not have put Dr. Bajwa in a position to answer Mr. Robbins’ questions.

Both Defendant doctors vigorously contest liability. They add that there are also significant causation issues such that Mr. Robbins has not proven that his amputation is on account of any alleged negligence. [ 5 ] The parties also contest the amount of damages Mr. Robbins is entitled to on account of the amputation and sequalae.

Background: The Evidence of Mr. and Ms. Robbins [ 6 ] Born (d.o.b. October 26, 1961) and raised on Prince Edward Island, David John Robbins moved to Nova Scotia and began his career with RBC Commercial Banking 34 years ago. He married his wife, Natalie, in 1998. The couple do not have children. [ 7 ] Mr. Robbins described the lead up to his decision to opt for a total right hip replacement. While in his late forties, he had been experiencing pain, which he thought might have been exacerbated by doing lunges at the gym. In 2011, the pain forced him to curtail his golfing to about ten percent of his former level.

After consulting with his family physician, Dr. Marsh, he was referred to orthopaedic surgeon Dr. Gross. [ 8 ] Mr. Robbins’ initial office consultation with Dr. Gross was in October 2011. Dr. Gross provided his thoughts, along with literature on the hip replacement operation. Mr. Robbins was left with the option to advise Dr. Gross in the event he chose to be placed on the operation list. Soon thereafter, Mr. Robbins decided he wanted the procedure and notified Dr. Gross’ office; he was booked for surgery on January 26, 2012.

During his pre-operative clinical assessment, the Plaintiff was given reading material, including general information concerning hip surgery and potential complications. Dr. Gross provided his phone number in the event of complications. [ 9 ] According to Natalie Robbins, before undergoing the surgery, her husband read the provided literature and watched YouTube videos concerning hip replacement. Mr. Robbins gave his informed consent for Dr. Gross to carry out the procedure. [ 10 ] Mr. Robbins met with Dr. Gross twice prior to surgery.

He received “Your New Hip”, a 44-page handout (exhibit 2) intended for all patients undergoing the procedure at the Queen Elizabeth II Health Sciences Centre (“QE II”), along with the nine-page handout, “Total Hip Replacement Information For Patients Of Professor Michael Gross” (exhibit 1). [ 11 ] Mr. Robbins had an uneventful time immediately prior to his anaesthesia on January 26, and a similarly uneventful post- operative course in hospital. The medical records in evidence and all of the testimony confirms the surgery and post-surgical course were routine up to and including Mr.

Robbins’ release from hospital on January 28 th . [ 12 ] Mr. Robbins’ post-operative course of medication while in hospital consisted of pain-killers and anticoagulants (blood thinners). While in hospital after surgery he saw an occupational therapist and physiotherapist. Shortly before discharge Mr. Robbins recalled a brief visit by Dr. Gross and one of his residents, Dr. Lewington. [ 13 ] Mr. Robbins left the hospital on crutches and his wife drove him home, stopping en route at a pharmacy.

When she returned to the car with his prescription filled, he thought it was “strange” that the prescription was only for Dilaudid and not also for a blood thinner. Accordingly, he called the nursing unit and a nurse confirmed the doctor’s orders were for the pain killers only. [ 14 ] Ms. Robbins gave evidence in line with her husband concerning the possibly missed prescription. She recalled that he followed-up by calling the nursing station to ask whether he should be prescribed a blood thinner in addition to the pain killer. [ 15 ] Once home, Mr. Robbins said, he was “feeling good”.

He was able to ambulate with minimal pain and commenced the leg exercises he was given. As instructed, he tried to remain as active as possible. He described right hip pain that was “good” with exercise and that it went away when he stopped. Mr. Robbins said every day was a little better until the morning of February 5 th . On this day, a Sunday, he noted that the pain did not subside after he finished his morning leg exercises. [ 16 ] During his morning shower, he experienced pain in both legs, from his knees to toes. The pain persisted and when he laid on the bed, it became “intense”.

After 20 minutes of intense pain, followed by 25 minutes of lesser pain, the feeling subsided. On cross- examination, it was put to him that the left leg pain was worse than the right, but he could not recall this and thought they were equally in pain. He did not seek medical advice on February 5 th . The day progressed and he watched the Super Bowl and did periodic leg exercises, noting more fatigue than usual. [ 17 ] Ms. Robbins recalled her husband telling her that something “very strange” happened in the shower. He described “excruciating, intense” pain in both legs, from his knees down.

Her husband looked as though he was in a lot of pain. She suggested calling 911 or Dr. Gross; however, Mr. Robbins’ pain subsided and they carried on with their day. [ 18 ] Ms. Robbins thought her husband was “a little tired, quieter” while watching the Superbowl; however, he was not in pain. While watching the game, he did not complain of leg numbness or skin color changes. [ 19 ] Mr. Robbins felt “something a little different” might have been going on, and thought back to the evening before. While doing exercises standing at the kitchen counter, he had pushed himself and thought this might be the cause.

This prompted him to consult the material he had been provided; he read the

section on blood clots, and wondered if that could be the problem. On cross-examination, he stated, “I was looking for something in the literature that would indicate what happened, an explanation”. He added that the literature did not “shed light on this … it did not describe what I went through”. [ 20 ] Ms. Robbins did not recall her husband mentioning anything about left leg tiredness on February 4 th . The next day was when he first complained to her of pain, after his shower. She recalled him saying the pain lasted for 30 minutes or so. [ 21 ] Mr. Robbins went to bed after the football game.

The pain went away but he felt fatigued. He denied swelling in his legs. He discussed with his wife that he might call Dr. Gross the next day. He did not require any medication through the night, awoke the next morning and performed his leg exercises. Again, he felt some fatigue, which prompted him at around 10 – 10:30 a.m. to call Dr. Gross at the provided number. Mr. Robbins reached a recorded message which said to call one of two numbers – one for the orthopaedic clinic and the other for the orthopaedic resident on call. He reached Dr. Bajwa, the on-call resident.

The content of this call on Monday, February 6, 2012 is critical to the outcome of this case.

Dr. Arpun Bajwa [ 22 ] Before setting forth the conflicting versions of the phone call, I wish to review the evidence on Dr. Bajwa’s background. Dr. Bajwa was born and raised in Dalhousie, New Brunswick. She graduated from the University of Waterloo in 2007 with an honours degree in biochemistry. That fall, she started at Dalhousie Medical School, graduating in 2011. Upon obtaining her medical degree, Dr. Bajwa entered into the five-year orthopaedic residency program through Dalhousie University and the QE II, which she completed in 2016. She wrote and passed the Royal College and stage one of the American exams.

Notwithstanding a cancer diagnosis, Dr. Bajwa went on to achieve two fellowships. [ 23 ] Presently Dr. Bajwa resides in Delta, British Columbia, and describes herself as “getting back to healthy” and assisting with orthopaedic surgery. [ 24 ] In February 2012, Dr. Bajwa was in the eighth month of the five-year orthopaedics residency. She spoke highly of the program, describing her role during the relevant time. She explained that there were various services – tumours, upper extremities, foot and ankle – that residents rotated through.

A typical day would include morning hospital patient rounds and time assisting in both the operating and emergency rooms. [ 25 ] The residency program involved didactic as well as “hands on” sessions. During her first month, she was paired with a senior resident and taught how to manage on-call situations. Dr.

Bajwa said that there “was a lot of instruction on patient calls … there was an invariable approach … because we can’t physically examine (over the phone), that should be the next step, direct them to call the surgeon or see their family doctor or go directly to the emergency room”. [ 26 ] In 2012, the chief resident determined which resident would be on call and when. By February 2012, Dr. Bajwa had been on call “multiple times”. She fielded a lot of calls and said her general approach was to listen to patient complaints and “depending on what they tell you, most likely direct them how to get a physical exam”.

At the time, it was not the practice to make notes of patient phone calls. Dr. Bajwa recalled that when she took such calls, she could be in between the operating room, clinic, on the floor or in the emergency room. On cross-examination, she said that she would not make notes unless she saw the patient in person. Mr. Robbins’ Version of the Call [ 27 ] Mr. Robbins recalls Dr. Bajwa answering the phone and that they introduced themselves. He said it had been eleven days since his surgery. Mr. Robbins testified that Dr. Bajwa was “abrupt … she asked why I was calling”.

He said she promptly told him to call his family doctor adding that she “kept interjecting, she seemed stressed … like I was bothering her … I got a little fed up and I told her I am his patient, this is the number he left, she started to listen and I told her my history.” Dr. Bajwa stopped interjecting and asked him about his right hip incision. He replied that it was fine but that both his legs from his knees down were bothering him, recounting the background set out above from February 4 th to 6 th . [ 28 ] On cross-examination, Mr. Robbins agreed that Dr.

Bajwa asked him whether the right hip incision was okay, and he responded that there was no pain in that area. He said he told Dr. Bajwa his exercise routine, that he had continued with the exercises that morning, and that he still felt fatigued but that the 45 minutes of pain on February 5 th had not returned. [ 29 ] Mr. Robbins thought Dr. Bajwa asked him about the color of his skin (on his legs) and then said, “It doesn’t sound like anything serious, stay home, do your exercises and everything should be fine”. Upon hearing this Mr.

Robbins was “quite relieved”. [ 30 ] The Plaintiff is confident in his memory of the call: “I have a very clear recollection, it was an important call to me”. On cross- examination, he said he did not make any notes of the call. He added that he made the call in his family room and that his wife was present and heard his side of what he estimated to be a five minute call. [ 31 ] On cross-examination, Mr. Robbins could not be sure if he first placed a call to the orthopaedic clinic but said his “first connection was with Dr. Bajwa”.

Asked if she questioned him about swelling in his calves, he replied, “I believe she did”. He testified that his legs were not swollen and that it did not hurt to touch his legs. [ 32 ] Mr. Robbins could not remember if she asked him if he had pain in his legs. He thought he told her that he no longer was in pain. Mr. Robbins said he was not asked whether his skin changed color. He agreed that the changes in skin color happened later in the week, perhaps on Wednesday or Thursday. On cross-examination, Mr. Robbins did not recall telling Dr. Bajwa his non-surgical leg was worse than his other leg.

He told her that he thought he might have overdone it with exercise on the Saturday night: “I was balancing on my left leg at the counter, standing longer than normal on my left leg, I thought I might have done something during that period of time.” [ 33 ] On cross-examination, Mr. Robbins was repeatedly asked about Dr. Bajwa telling him that he should call his family doctor or go to the emergency department. As for the former, Mr. Robbins said that she initially told him to go to his doctor before she listened to his history. After hearing his symptoms, she did not repeat the advice, but rather, reassured him.

With respect to advice to go to the emergency room, Mr. Robbins denied that she ever told him this, stating, “If she had told me, I would have done that”. He added, “She may have said that initially, before she knew why I was calling … she did before she knew why I was calling… to try to get me off the phone”. Mr. Robbins could not recall if Dr. Bajwa said she could not physically assess and evaluate him over the telephone. Later, he said he had “no reason to dispute” that Dr. Bajwa may have told him it was difficult to assess patients over the phone. [ 34 ] Asked why he did not call Dr. Gross’ office again, Mr.

Robbins responded that after he spoke with Dr. Bajwa, “I was relieved .. I relied on her because she listened and she was the medical professional I was relying on and my surgeon gave me the number.” He added that, based on his discussion with the resident, he did not feel he needed to contact Dr. Marsh. [ 35 ] When it was put to Mr. Robbins that at no time did Dr. Bajwa say everything was fine with him, he responded, “She did say that… it doesn’t sound serious, stay home and do your exercises”. Ms. Robbins’ Version of the Call

[ 36 ] Ms. Robbins recalled her husband trying to reach Dr. Gross on the morning of the 6 th . On cross-examination, she estimated that her husband called Dr. Gross’ office around 9 o’clock in the morning. He ultimately reached Dr. Bajwa and Ms. Robbins overheard his end of the call: “He described to her his symptoms from the day before”. She heard him say it was “the worst pain he had ever felt” and that it lasted about a half hour.

He wanted to know if it was anything to be concerned about; he thanked the doctor when he hung up. [ 37 ] Immediately following the call, “he told me that she did not seem to think there was anything to be concerned about… he should basically carry on as normal, do his exercises”. After the call, Mr. Robbins did not say anything about going to the emergency room or his family doctor.

Given that the doctor advised that there was “really nothing to be concerned about”, they felt relieved, concluding – based on the call – that he must have developed the pain on account of overdoing the leg exercises. [ 38 ] On cross-examination, Ms. Robbins estimated that the call with Dr. Bajwa lasted five to ten minutes. She heard her husband tell the resident of his February 5 th shower pain and that it lasted 30 – 60 minutes. She did not discern that her husband was angry during the call. After the call, he said nothing about going to Dr. Marsh; he did not reach out to Dr.

Gross or present at the emergency room. Ms. Robbins stated, “He didn’t say he was told to get a medical evaluation; if he was told that he would have done it… I would have encouraged him”. Dr. Bajwa’s Version of the Call [ 39 ] Dr. Bajwa was paged and returned the call from a hallway phone. Upon dialing the four digits, Mr. Robbins was on the line. After making introductions and Mr. Robbins giving his age, he explained that Dr. Gross had performed right hip surgery but that he was “currently having symptoms, in his left hip and leg”.

She asked him about his right leg; he replied that his left leg was his main concern. Dr. Bajwa elaborated, “I specifically asked questions about both his legs and if there was any pain bilaterally, calf swelling, skin changes visible … his right hip replacement and the incision”. She recalled he answered that “he had no issue with his right leg but that his left leg was bothering him the day prior, from the left hip all the way down the leg”. She was told that by the 6 th , “the symptoms were gone”. She added he did not say what time he experienced the pain on the 5 th , but that it was related to exercising.

She told Mr. Robbins that she could not do a physical examination over the phone and that he should call Dr. Gross, call his family doctor or go to the emergency room. [ 40 ] Dr. Bajwa said that what she told Mr. Robbins was in keeping with the “invariable approach we use when we can’t do an examination over the phone”. With reference to obtaining a physical examination, “at the end of the conversation … then I would have informed him”. Dr. Bajwa said she recalled Mr. Robbins saying, “Okay”. She denied telling him to stay at home and continue with his exercises. [ 41 ] In retrospect, Dr.

Bajwa wished she had documented the phone call, stating that it was not the practice at the time. [ 42 ] On February 6, 2012, Dr. Bajwa had just finished seeing a patient in the emergency room. She was on her trauma rotation and would have arrived at the hospital around 5:30 – 6:00 in the morning. She believes that she was the only resident on call. She remembers the call from Mr. Robbins because she ended up seeing him three days later. This fact, and that “we rarely see post-op hip replacement patients”, “crystalized” her memory. Further, about two weeks later, she documented the call “for my superior” (Dr.

Amirault, Chief of Orthopaedic Surgery). She was referred to the email which she sent to Dr. Amirault and copied to Dr. Oxner, Director of the Orthopaedic Surgery Residency Program. Dr. Bajwa said she was approached by Dr. Amirault on February 21 st or 22 nd to write an account of the call. She wrote the email on February 22 nd and sent it on the 28 th . She said the delay was because she was first asked to write the account, and later Dr. Amirault requested that she send it to him. [ 43 ] The first sentence of Dr.

Bajwa’s letter reproduced at exhibit 1, pp. 74 – 75, reads: This letter is written for my lawyer in the event legal action is pursued against me with respect to patient Robbins, David. [ 44 ] She testified that she added this to her account before emailing it to Dr. Amirault. Dr. Bajwa included this because she called the Canadian Medical Protective Association (“CMPA”) to “run things by them” and “they asked me to add this sentence” before sending the letter. She denied feeling uncomfortable when she contacted CMPA, and said that she had “no idea” that litigation was pending. [ 45 ] Dr.

Bajwa was asked about the remainder of the letter, which reads: These are the sequence of events as I recall them. February 6, 2012: I received a call from D.R., while on day call. He informed me he was a patient of Dr. Grosses, was 50 years old, healthy and underwent a right THR a week or so prior. He had complaints of left sided hip and leg pain, although he denied calf swelling, pain to palpation or any red (erythematous) skin.

I asked him about his wound/incision from surgery – he said it was ok – I informed him that it is difficult to assess patients over the phone because I am unable to physically examine them. And as I would for all patient calls, this case being no different than any other, I informed him that he should call his family doctor, go to the emergency department or contact Dr. Gross’s office. February 8, 2012: Patient D.R. called me while on day call. Informed me that he was a healthy 50 year old male who underwent an elective Right total hip surgery approximately ten days prior.

He stated he has been getting worsening pain in his left leg and now feels it in his right leg. Finds the pain to be present at rest and when walking. The Right THR fed ok at that time. He had no recent falls or trauma. I informed him to call Dr. Gross’s office right away (as it was day time hours). If he could not get a hold of anyone he was to call me back. A lady for the OAC clinic called me saying that he spoke to the wife of D.R. and that she was upset and wanted to see someone. I said that was fine, please send them to the Rapid assessment unit on the third floor next to the emergency department.

In the RAU His wife was also present during this visit and this was the first time I spoke with her. She stated they had called twice and i

informed them that I was the resident D.R. spoke with over the phone. She state “my husband tends to minimize things” – this is something I distinctly remember his wife mentioning. I went through a complete history (although the medical student had also provided me with some information) and proceeded with the initial parts of my physical exam. I was unable to palpate pulses in both feet with my hand and attempted with a doppler. The left foot was cold to touch, pink centrally and pale in colour at the toes.

I was able to get a weak pulse with the doppler (both a medical student (Nina) and nurse (Nicki – in RAU) were present when this was conducted). I then proceeded to assess what his ABI was, however I could not attain a consistent pulse when inflating the cuff. I became worried and knew something was wrong with his arterial system. I called radiology right away, spoke to the interventional radiologist Dr. Lightfoot. Explained the story and stated I would like an “aorto bifem with run off” CT angio. He asked me if I called vascular, and I said i was in the process of getting them involved.

I then proceeded to see other patients. Dr. Lightfoot called me immediately after the results were back stating the patient had bilateral popliteal artery occlusions extending into his tibial arteries. I made another call to vascular, asked them to come as soon as possible and to re-discuss the results with Dr. Lightfoot who was awaiting a call from them to discuss the results with the vascular resident on call. I went back to the see the patient and his wife to discuss the results with them.

I informed them that this was beyond the scope of my knowledge and will let vascular surgery take over his care from there. D.R. was worried that he did something wrong to cause this and I informed both him and his wife, that there is absolutely nothing they did wrong that would have caused this. Vascular then started him on a heparin drip and admitted him. At that point his limbs were still salvageable. I went on to see the other orthopaedic patients waiting in the emergency department. This was the end of my involvement. Arpun [ 46 ] Asked if Mr.

Robbins requested that she listen to his story, she responded, “No, he did not”. She added that “of course” she took him seriously, as she does with all patients with whom she interacts. She said it was an approximately five minute discussion, and said, “I really feel I did my best there”. After hearing his history and answers to her questions, she “told him there were three options for physical examination”. [ 47 ] On cross-examination, she elaborated, “My advice was he needed a physical examination… I asked the patient directly to do that”.

She felt she gave appropriate advice, and so she did not need to consult with her senior resident. Dr. Bajwa acknowledged that she had the ability to have Mr. Robbins assessed in the Rapid Assessment Unit (“RAU”) on February 6 th . [ 48 ] Dr. Bajwa did not know of Mr. Robbins prior to the February 6 th call. She did not have Mr. Robbins’ chart when she took the call. There was not a computer near the wall phone. Dr. Bajwa did not access the patient’s chart during or subsequent to the call. It was put to Dr. Bajwa on cross-examination that she told Mr.

Robbins that she did not know him or his case; she replied, “That’s incorrect, I dispute that”. [ 49 ] Dr. Bajwa agreed that when she documented what took place, it was around two weeks later. She added that the “very significant event” diagnosed on February 9 th made it “highly likely” that she would remember the precise details of the February 6 th phone conversation. She repeated that her memory of the 6 th “crystalized” once the two spoke again on the 9 th . [ 50 ] On cross-examination, Dr. Bajwa did not recall if she knew Mr. Robbins had lost his leg when she drafted her February 22 nd letter. She said Dr.

Amirault told her that the family was upset and that he asked for her written version of events. She agreed it was “unusual” to be approached by the orthopaedic chief in such circumstances. [ 51 ] On cross-examination, it was pointed out that Dr. Bajwa’s letter references Mr. Robbins’ having left sided hip and leg pain, only. Dr. Bajwa stood by this statement even though all of the references (exhibit 1, pp. 39 – 42; 49, 50, 140, 142 and 144) shown to her demonstrated pain in both legs. She clarified that when she spoke with Mr.

Robbins on February 9 th , “he spoke of the problem four days earlier; on the 6 th he only told me it was his left leg even though I questioned him … that is my account even though on the 9 th he told me both legs … I didn’t question the discrepancy”. [ 52 ] On cross-examination, she agreed that she was fielding calls for all orthopaedic patients, including those of Dr. Gross. She did not receive any notification that Dr. Gross was away. The February 7 th Call From Dr. Gross’ Office Manager [ 53 ] Rhonda Pinkney was Dr. Gross’ office assistant between 1995 and 2016.

Her duties involved booking patient appointments. She provided Mr. Robbins’ initial appointment with Dr. Gross through his referring physician. [ 54 ] On February 7 th , Ms. Pinkney called Mr. Robbins in response to a message he had left the day before. She could not recall what was said in the conversation; however, her practice when returning such a call would be to offer an appointment for the patient to see Dr. Gross upon Dr. Gross’ return to the office. Ms. Pinkney vaguely recalled that Mr. Robbins didn’t feel his problem “warranted to see Dr. Gross at that time”.

She added on cross-examination, “I would say Mr. Robbins was not having the difficulty he previously had”. She recollected that at the time of the call, Mr. Robbins said he was in his “Lazy-Boy type chair”. She believed he was experiencing discomfort after doing exercises, but that the discomfort had gone away as “he didn’t accept the appointment to see Dr. Gross”. Had Mr. Robbins requested an appointment, she would have made one for the next day with Dr. Gross (I note that Dr. Gross, according to his evidence, was away on February 8, 2012). [ 55 ] Mr. Robbins testified regarding the call from Dr. Gross’ office.

Rhonda Pinkney called in response to the message he had left the day before. Mr. Robbins spoke with her while sitting in his recliner chair. He relayed that he had no particular concerns and that he was doing his post-operative exercises. He told Ms. Pinkney that he had been experiencing pain but that it was not present on February 7 th . Mr. Robbins had no recollection of Ms. Pinkney saying he should present to the hospital, adding, “I had no reason to think I needed

to go on the 7 th because of what happened on the 6 th ”. In his mind, he was thinking of his phone conversation with Dr. Bajwa; however, he did not recall whether he told Ms. Pinkney that he had spoken with Dr. Bajwa. Although he could not remember if Ms. Pinkney offered a next day appointment with Dr. Gross, he stated, “There was no issue, so I probably wouldn’t have accepted it”. [ 56 ] On cross-examination, Mr. Robbins described the call with Ms. Pinkney as “inconsequential”. When his discovery evidence was put to him, he agreed that he was offered the opportunity to see Dr.

Gross. [ 57 ] Natalie Robbins said she was “fuzzy” about the nature of the call, other than to say her husband “spoke with Rhonda… Dave described to her what happened”. [ 58 ] On cross-examination, she was not sure of the duration of her husband’s February 7 th call with Ms. Pinkney. Her husband told Ms. Pinkney that he had tried to call Dr. Gross the day before to explain what he experienced on the Sunday. Upon speaking with the resident, he was re-assured, so he said on the call that he did not need to see Dr. Gross. Ms. Robbins recalled her husband was not in pain on February 7 th .

The February 8 th Trip to Costco and the Aftermath [ 59 ] The day after his call with Ms. Pinkney, Mr. Robbins started to feel pain following a late afternoon trip to Costco. He accompanied his wife on the drive but did not go into the store. Upon returning home, he felt pain in his lower legs and was experiencing cold feet. He characterized his situation as a “progressive thing … when I got home I felt general fatigue, my feet were getting cool… I had to sit up and hang them over the side of the bed or exercise so they’d warm up”.

Asked why he did not then present at the emergency room, he responded, “I had talked to a medical professional on Monday who said there was nothing serious”. Later on cross-examination he added, “To me it wasn’t an emergency, it was a developing issue, something progressing”. He added that due to Dr. Bajwa’s advice two days earlier, “I didn’t think it was an emergency”. [ 60 ] After the Costco trip, Natalie Robbins was somewhat worried as “he seemed to be tired, struggling a little bit”.

She recalled the rest of the day was rather uneventful until they went to bed and “he kept sitting up on the side, hanging his legs on the side of the bed”. Mr. Robbins told her that doing this helped to warm up his feet. Her husband left their bed and when she saw him in the morning, he was sitting in the family room recliner chair where he had spent the night. [ 61 ] On cross-examination, Ms. Robbins recalled that her husband did not go to the emergency room after Costco because his “pain was not anywhere near what he had experienced on the Sunday”. She added he was just tired and had low energy.

The February 9 th Calls The Evidence of Mr. and Ms. Robbins [ 62 ] By daybreak, Mr. and Ms. Robbins discussed the situation; he was determined to make phone calls with his “primary objective” being “to talk to Dr. Gross”. At around 9:30 a.m., Mr. Robbins called Dr. Gross’ office and left a message. [ 63 ] Mr. Robbins next called the orthopaedic clinic and the resident on call. He reached the latter and it happened to be Dr. Bajwa, whom he informed of his symptoms. Mr. Robbins’ June 15, 2015 discovery evidence was brought to his attention and he agreed that as he was getting ready to go to the emergency room, Dr.

Bajwa called him and directed that he call Dr. Gross’ office. He agreed that she told him that if he did not reach Dr. Gross, he could call her back. In any event, Mr. Robbins described “a frustrating call” with Dr. Bajwa, as he did not feel she wanted to speak with him. [ 64 ] Natalie Robbins overheard her husband tell Dr. Bajwa what was going on. After the call, he said that he was frustrated and wanted to go to the hospital to see Dr. Gross. [ 65 ] Mr. Robbins next spoke over the phone with a nurse, Sharon Davis. He estimated a ten minute call, during which he reviewed his symptoms.

Nurse Davis said she would call back after she followed up with the resident who assisted with his hip surgery. During the return call, she asked Ms. Robbins to pinch her husband’s toes, and, upon doing this, the color did not return to the nail beds. Accordingly, he was told to immediately present at the QE II RAU. The records confirm that Mr. Robbins was seen by Dr. Bajwa at the RAU at around noon on February 9, 2012. [ 66 ] While Mr. Robbins was in the shower getting ready, Natalie Robbins received a call from the orthopaedic clinic. Sharon Davis had spoken with the resident who advised Ms.

Robbins to take her husband to his family doctor. Ms. Robbins replied by insisting that they would be presenting at the hospital. The nurse asked Ms. Robbins to take Mr. Robbins’ foot pulses. Ms. Robbins was not comfortable doing this, so she was asked to pinch his toes to see how long it took for the color to return. Upon doing so, Ms. Robbins advised, “There’s no color to begin with… they’re white and not coming back to their normal color”. This prompted Ms. Davis (on the same call, or shortly thereafter on second call) to advise that as soon as Mr.

Robbins presented at the emergency room, he would be seen by the RAU. Upon arriving at the QE II, Halifax Infirmary (“HI”) site, Mr. Robbins was seen very quickly. Dr. Bajwa saw Mr. Robbins and had him remove his shoes and socks. Upon observing his “cold, white” lower limbs, she moved with dispatch, arranging an I.V. and referral to vascular surgery. [ 67 ] On cross-examination, Ms. Robbins was asked about the February 9 th call she had with nurse Sharon Davis. Referred to the portion of Nurse Davis’ note stating Mr. Robbins had been told to go to his family doctor, Ms.

Robbins re-iterated that her husband never said he was given this advice. [ 68 ] Ms. Robbins acknowledged on cross-examination that when Nurse Davis said a “resident” advised that Mr. Robbins should go to his family doctor, she assumed the resident was Dr. Bajwa. She agreed that Dr. Bajwa’s name was not given by the nurse and that her note identified the resident as Dr. Lewington.

[ 69 ] On cross-examination, she agreed that she “probably did say” that her husband “tends to minimize things” when she spoke with Dr. Bajwa in the RAU. She also agreed that he asked whether he had somehow caused the problem. [ 70 ] She agreed that Dr. Bajwa was polite and attentive. Dr. Bajwa examined Mr. Robbins’ legs, and ultimately explained the test results she ordered demonstrated that he had clots in both legs and that he was being referred to vascular surgery. Dr. Bajwa [ 71 ] On February 9 th , Dr. Bajwa received Mr. Robbins’ call in the same manner as on the 6 th .

He re-introduced himself and he told her his “symptoms were worsening in both legs”. This caused her to turn her mind to their initial call: “I thought it a little interesting he didn’t take my advice to get a physical examination. I didn’t press it, I just listened to what he had to say”. Upon learning further details of his deteriorating condition, Dr. Bajwa told him to call Dr. Gross’ office right away. She added that she “deliberately closed the loop by telling him to call me back should he not get through to Dr. Gross”. [ 72 ] Shortly after this call, Dr. Bajwa received a call from an orthopaedics nurse.

The nurse, Sharon Davis, had been speaking with Mr. Robbins wife, who she said was upset. Dr. Bajwa decided to have Mr. Robbins assessed at the RAU “because at this point, two times Mr. Robbins had not heeded my advice… I should just do the physical examination”. [ 73 ] With the aid of the hospital records, Dr. Bajwa reviewed her RAU assessment and ultimate referral to vascular surgery. Nurse Sharon Davis [ 74 ] Nurse Davis received her Registered Nurse licence in 1984, and has worked at the QE II and predecessor hospitals in the years since. She has spent the bulk of her career in orthopaedics. [ 75 ] Ms.

Davis was directed to her notes written on the standard orthopaedic assessment clinic form. She reviewed her handwritten notes, confirming that she spoke with Mr. Robbins between 9:30 and 9:40 on February 9, 2012. He called because he was “concerned about his legs”. She noted that he called a female resident the day before to discuss the situation. She was “pretty sure” that she wrote down that he said the resident said to go to his family doctor or the emergency department. On cross-examination, she agreed she was not sure what Mr. Robbins said to the resident when he spoke with her.

She agreed that her note states Mr. Robbins had been seen the “previous day”, when it was three days earlier. [ 76 ] Although Ms. Davis recalled speaking with Mr. Robbins, “I more remember talking to his wife”. Ms. Davis told Mr. Robbins she would try to get in touch with the resident who saw him on discharge. She determined this to be Dr. Lewington, although her note also refers to Dr. Llewellyn. Nurse Davis recounted to Dr. Lewington the history Mr. Robbins had provided her. On the basis of her discussion with Dr. Lewington, “I was going to call him back and tell him to come to the emergency room”.

When she called back, Ms. Robbins answered “and she gave me more information on his legs”. Nurse Davis thought this sounded like “a circulation problem”. She asked Ms. Robbins to check her husband’s pulses; Ms. Robbins was not equipped to do this, so she asked her to “blanche his toes”. Upon learning that his feet “never became pink” she stated, “You have to worry about clots”. [ 77 ] Ms. Davis remembered Mr. Robbins saying he did fine for the first ten days after his surgery. He told her that he had an episode in the shower on Sunday morning and that there was greater pain in the non-surgical leg. Mr.

Robbins also told her that his current fatigue was more pronounced on the left side. [ 78 ] Upon speaking with Mr. Robbins, Nurse Davis reviewed his “horizon patient folder” which did not provide her with useful information. Nevertheless, “I knew something was going on and either way he was going to have to come into the emergency department to figure it out”. [ 79 ] Ms. Davis next called the on-call resident, Dr. Bajwa; “She knew who the patient was and remembered speaking with the patient. She felt he should go to the emergency room, once I told her what Mr. Robbins’ wife told me”. Dr.

Bajwa agreed when Nurse Davis requested that she see him in the RAU. Ms. Davis called Mr. Robbins back and relayed this information. [ 80 ] On cross-examination, Ms. Davis confirmed that the calls with Mr. and Ms. Robbins took place on February 9 th ; however, on February 10 th , she re-wrote her original notes of the calls on the standard hospital form without retaining the original notes. Although she spoke “with case managers”, the contents of their discussions are not in her notes at exhibit 1. [ 81 ] On cross-examination, Nurse Davis agreed that she recorded Mr.

Robbins’ hip surgery as January 6 th rather than the correct date of January 26 th . After she first spoke with Mr. Robbins, she was concerned enough to do “a number of things to try to figure this out”. She put things “in motion” so Mr. Robbins’ could be seen in the RAU. She felt Mr. Robbins should not have to sit at his family doctor’s office or the emergency room. Nurse Davis characterized both Mr. and Ms. Robbins as “frustrated”. [ 82 ] Through the direct and cross examinations of Ms. Davis, it became clear that she made at least three errors in her chart notes. First, she noted the date of Mr.

Robbins’ surgery to have been on January 6 th , and not the correct date of January 26 th , 2012. Second, when referring to her conversation with Mr. Robbins on February 9 th , she recorded that he had spoken with the female resident “the day before”, when they had in fact spoken on February 6 th , 2012. Finally, she confused the name of the resident who assisted Dr. Gross with the surgery, Dr. Lewington, with Dr. Llewelyn. Rhonda Pinkney [ 83 ] Ms. Pinkney called Mr. Robbins’ home number on February 9 th in response to a message he left earlier that morning. Her transcribed message reads:

This is Dr. Gross’ office. I understand that you are having more complaints. I just spoke to the resident and Dr. Gross is not back until tomorrow. So, what I can do with Dr. Gross is to tell that you should come tomorrow maybe around 10 o’clock tomorrow morning. Otherwise, you would have to see your family doctor today. If you can give me a call back. I’m going to be out of the office again. I’ve been in and out for the last couple of days. If you can just let me know if you want to come in tomorrow. The resident is under the understanding that it’s the opposite leg of what was operated on.

So that could just be, you know, a matter of the contortions that they have put you in when, you know, getting you ready for surgery and things like that. But, you know, if you want to be seen, give me a call. However, if you’ve gone to your family doctor and they’ve come up with something let me know. 473-6811. Okay. Thank you. Bye-bye. [ 84 ] She testified that the “resident” that she had spoken with was Dr. Lewington. On cross-examination, she said that at that time, Dr. Lewington was in the orthopaedic service, assigned to Dr. Gross. He attended clinics with Dr. Gross and she considered him to be Dr.

Gross’ “next in command”. If both Dr. Gross and Dr. Lewington were unavailable, the on-call resident would be paged. Although Ms. Pinkney could not remember speaking to Dr. Lewington before leaving her February 9 th message, she said she identified him “relative to protocol”, adding that had he been unavailable, she would have spoken (per protocol) with the on-call resident. Natalie Robbins [ 85 ] Ms. Robbins returned home on the evening of February 9 th , and picked up a telephone message that had been left at their house earlier that day. Ms. Pinkney called to say that Dr. Gross was still away. Ms.

Pinkney talked to the resident, who thought Mr. Robbins’ situation was nothing to be concerned about as it might relate to the way he had been positioned on the operating table. She signed off by saying that if Mr. Robbins needed to see Dr. Gross she would fit him in the next day. Mr. Robbins’ Hospital and Rehab Course [ 86 ] The course of events from Mr. Robbins’ February 9 th admission until his February 18 th amputation are not in dispute. Similarly, his recovery period involving his admission and discharge from the Nova Scotia Rehabilitation Centre (the “Rehab”) are non- controversial.

The oral and documentary evidence confirms these milestones. Natalie Robbins [ 87 ] Ms. Robbins returned to the hospital on February 10 th , and her husband underwent his first vascular surgery around one o’clock in the afternoon. While waiting for her husband to come out of surgery, Ms. Robbins saw Dr. Gross and his resident “Matt” (Dr. Lewington) in the corridor. Dr. Gross took her aside and explained that he had been out of town and had just heard from Ms. Pinkney of Mr. Robbins’ difficulties. Ms. Robbins told Dr.

Gross that she was “really upset” with the resident’s February 6 th telephone advice. [ 88 ] On cross-examination, she agreed that when she spoke with Dr. Gross she asserted that Dr. Bajwa had not advised her husband to get medical attention when he spoke with her on February 6 th . She told Dr. Gross of Mr. Robbins’ call with Dr. Bajwa and her advice “that there was no need to come in, carry on as normal, do his exercises and that the situation was not serious”. Ms. Robbins agreed that she did not convey anything about her husband’s conversation with Nurse Davis to Dr. Gross. Ms. Robbins said Dr.

Gross told her that he would speak with Dr. Bajwa. [ 89 ] On cross-examination, she agreed that she was “emotional, a lot was going on” when she spoke with Dr. Gross. She felt her husband had “fallen through the cracks a bit”. [ 90 ] According to Ms. Robbins, Dr. Gross said that what occurred “should never have happened … that’s medicine 101 … its something that should have been brought in to be looked at and reviewed”. [ 91 ] Later in the evening, Ms. Robbins was informed by Dr. Midgley, the vascular surgeon, that the left leg clot was persisting and Mr. Robbins would require a second surgery. Dr.

Midgley allowed that he would do whatever he could do to save Mr. Robbins’ left leg. This shocked and upset Ms. Robbins; two of her sisters traveled to Nova Scotia to provide support during this most difficult time. [ 92 ] Following the second vascular surgery, Ms. Robbins was with Mr. Robbins in the step down unit. He was in great pain, requiring significant medication. Dr. Li eventually took over Mr. Robbins’ vascular care and, despite several surgeries in an effort to save his leg, the decision was made to perform the below-the-knee left leg amputation. Understandably, Ms.

Robbins characterized this period as “emotional … really rough”. Once the amputation occurred, she noted her husband still experienced excruciating pain where the left lower limb had been (“phantom pain”). [ 93 ] Ms. Robbins recounted the conversation she and her husband had with Dr. Amirault. Ms. Robbins’ sister, Holly, was also present and, unbeknownst to Dr. Amirault, Ms. Robbins recorded the discussion (reproduced at exhibit 1, pp. 113 – 121). She confirmed the transcript to be accurate. [ 94 ] On cross-examination, Ms.

Robbins was questioned about her statement, “Your feet were white, babe”, referable to February 6 th . Ms. Robbins clarified that she would have said, “Dave, not babe”, and that his feet were not white until February 9 th . She added she was “keeping an eye” on her husband, and that he “slowly became worse” between February 6 th and 9 th . It was not until Thursday morning that she discerned “serious trouble”. [ 95 ] She also went over the February 24 th conversation she and her husband had with Dr. Gross and Dr. Lewington. Once again, Ms.

Robbins surreptitiously recorded the discussion, stating that the transcript (exhibit 1, pp. 122 – 132) is accurate. Ms. Robbins noted

that Dr. Gross said they had cause to retain legal counsel concerning “what happened with Dr. Bajwa”. [ 96 ] She noted that her husband is a “black and white person”, and he deals with things as they are. According to Ms. Robbins, Mr. Robbins follows medical advice, and if told to do something – such as go to the doctor – he would be compliant. Dr. Michael Gross [ 97 ] In addition to carrying out various other professional activities, Dr. Gross has practiced as an orthopaedic surgeon since 1981. Since 1987, he has practiced in Halifax; his 51-page c urriculum vitae (updated for 2015) was entered as exhibit 9. Dr.

Gross’ research includes a large study involving Warfarin, a blood thinner. He has taught all levels of orthopaedic surgery. [ 98 ] Dr. Gross reviewed the set up at the QE II orthopaedic department. Today, there are 15 surgeons on site; in 2012, there were slightly fewer. Dr. Amirault was the head of the division and Dr. Oxner was in charge of the residents’ program in 2012. [ 99 ] Orthopaedic residents are qualified doctors who apply to obtain five years of further training. While at the HI, they learn to manage patients in the emergency room, on the floor, in surgery and post-operatively.

Residents receive didactic lessons, participate in rounds and rotate through related specialties. In 2012, Dr. Gross was part of the orthopaedic curriculum committee, which met on a regular basis. Residents begin the orthopaedic program on July 1 st . Early on, they are given training in handling calls and recognizing emergencies. Dr. Gross testified that it was the “norm” for junior residents to take calls like the one in question. If they have any questions upon taking calls, junior residents are to consult with a senior resident and, if unavailable, the “staff man” (orthopaedic surgeon on call). [ 100 ] Dr.

Gross said that he is “totally comfortable” with the above set-up, which has been in place since he started his residency. Based on his experience, and in speaking with other physicians, “all hospitals are this way”. He added that the way his office deals with telephone messages left on his machine is the “normal practice of orthopaedic surgeons and most every surgeon within a teaching hospital”. [ 101 ] Dr. Gross said that at the HI orthopaedic unit, when a patient without issues is discharged, he does not alert a colleague in the event he is going to be away. He noted that Mr.

Robbins had a routine discharge. [ 102 ] As of early February 2012, Dr. Gross had not met Dr. Bajwa. He was well acquainted with Dr. Lewington, as he was a fourth year resident who was on Dr. Gross’ service. Dr. Lewington had been with Dr. Gross for a few months by the time he assisted with Mr. Robbins’ January 26, 2012 surgery. [ 103 ] Dr. Gross authored the nine-page hip surgery information booklet contained at exhibit 1. He provided the handout to all prospective hip surgery patients to assist with their understanding.

He reviewed pp. 2 – 3, referable to the pros and cons of prescribing post hip surgery blood thinners. Dr. Gross explained that the drug was prescribed to prevent pulmonary embolism resulting from blood clots, which may develop in leg veins. Dr. Gross noted the handout outlines the risk factors for developing these clots, adding that, “Mr. Robbins did not have any of the listed risk factors”. [ 104 ] On cross-examination, he confirmed that his office number appears on the handout. He agreed that he likely would not handle an initial call, as he would likely be attending to surgical duties.

The call would be taken by the resident on call, or his secretary. He agreed that upon receiving such a call, the resident could speak with him and “one way or another the patient would be given the opportunity to come in”. [ 105 ] Dr. Gross was shown exhibit 2, “Your New Hip”, a 43-page handout also provided to Mr. Robbins. Dr. Gross was asked about this para. at p. 13: Blood clots You have an increased risk of forming a blood clot after surgery. It is very important to do your exercises and get up and move as much as you can after surgery to prevent blood clots.

Signs of a blood clot in your legs are redness, swelling, warmth or pain anywhere in either leg. Signs of a blood clot in your lung are sharp chest pain, rapid heart rate, blood-tinged sputum, shortness of breath, or low grade fever. Tell a member of your health care team right away if you notice any of these signs. Your surgeon will assess and decide what anti-coagulant or blood thinning medication you will need. Blood thinning medication can be ordered in pill or needle form. You may need to go home on blood thinning medications. If the medication is in needle form you will be taught self injection. [ 106 ] Dr.

Gross prescribed post-operative blood thinners to Mr. Robbins because he knew he would be less active while in hospital. Although he intended a 14-day course of Warfarin, with reference to the medical records, Dr. Gross confirmed that Dr. Lewington did not prescribe the blood thinner upon discharge. While not aware of this on the day of Mr. Robbins’ discharge, Dr. Gross learned that Mr. Robbins had been discharged without a Warfarin prescription shortly after his February 9 th re-admission. In any event, Dr. Gross said that Warfarin would not have prevented the clotting experienced by Mr.

Robbins, as it was in his arteries as opposed to veins. He added that he had never seen or read that a risk of hip surgery could be bilateral arterial clogging. [ 107 ] On cross-examination, Dr. Gross said he did not believe Warfarin would have protected Mr. Robbins from his arterial blood clots. He added that he did not believe Mr. Robbins’ clots were linked to his hip surgery. [ 108 ] When Mr. Robbins called on February 6 th , Dr. Gross was away at a conference in Ottawa. He returned to his office the next day, and was told by his secretary that Mr. Robbins had called. Dr.

Gross had clinic on February 7 th , and he understood through Ms. Pinkney

that Mr. Robbins declined her offer of an appointment. [ 109 ] Dr. Gross described Ms. Pinkney as “pretty experienced” in obtaining patient information. If a patient needed a diagnosis, since this could not be done over the phone, arrangements would be made for an appointment. [ 110 ] On cross-examination, Dr. Gross said the plan was to have seen Mr. Robbins post-operatively one to two weeks later. Dr. Gross was not sure if Mr. Robbins had a post-operative appointment. [ 111 ] Dr. Gross returned to Ottawa on February 8 th and 9 th , and was back in Halifax on February 10 th when he returned to the HI.

He was referred to Ms. Pinkney’s transcribed February 9 th telephone message and identified the “resident” he believes she consulted with as Dr. Lewington “because he would know Mr. Robbins”. On cross-examination, he said Ms. Pinkney would speak with the on-call resident only in the event that Dr. Lewington was unavailable. [ 112 ] On February 10 th , Dr. Gross found out that Mr. Robbins had been admitted due to blood clots in his arteries, and he went to see him. On cross-examination, he said he read Nurse Davis’ notes. Dr. Gross said no one knew why Mr. Robbins had the clots. He described Ms.

Robbins as “highly emotional and distraught”. He recalled two of her sisters were with her, and described the time as “extremely intense, a high charged weekend… I knew she was very critical … every aspect including me”. Dr. Gross described this time as “one of the most stressful weekends I’ve ever had”. On cross-examination, Dr. Gross allowed that he told Ms. Robbins that if the family felt “aggrieved” by him, that they should see a lawyer and review their rights. [ 113 ] On cross-examination, he said that he had a number of conversations with Ms.

Robbins over the weekend and that it was “intensely stressful … the worst weekend of my life in my practice of surgery”. While he cannot remember every word said owing to the “amalgam of emotions… I remember that weekend, believe me”. Dr. Gross said he had great empathy for Mr. and Mrs. Robbins, but that he never would have been critical of Dr. Bajwa, because he did not know what happened. Having read Nurse Davis’ notes, he did not think that there was an issue with Dr. Bajwa. [ 114 ] Dr. Gross denied saying (in a meeting with Ms. Robbins) that it was “medicine 101” that Dr. Bajwa should have brought Mr.

Robbins in to be physically examined, adding that he was mainly listening in the meeting. On cross-examination, he said it was Ms. Robbins who was critical of Dr. Bajwa, and that Ms. Robbins used the term “medicine 101”. Dr. Gross said he did not know Dr. Bajwa, and did not have all the facts, so he would not make an assessment. Owing to Ms. Robbins’ accusations, Dr. Gross was not sure he could maintain his doctor/patient relationship, and he described a “come to Jesus talk” with Mr. and Ms. Robbins, ending with him ultimately agreeing to stay on the case (Dr.

Gross performed the amputation on February 18, 2012). [ 115 ] On cross-examination by Dr. Bajwa’s counsel, Dr. Gross said that in 2012, it was not standard practice to document calls like the one received by Dr. Bajwa. He added that a resident would not have been expected to report such a call to him. [ 116 ] On cross-examination, Dr. Gross stated that post hip replacement surgery pain is common. He said that because tissues are cut, pain may be triggered. If a patient complains of pain, “you get more information over the phone… pain could be indicative of any number of issues”. Dr.

Gross agreed that he sometimes called up charts to refresh his memory. In 2012, there were both hospital charts and his own charts for a patient. [ 117 ] Dr. Gross agreed that Mr. Robbins’ pain – not occurring until the Wednesday night – was unusual given “what I heard in the courtroom” (Dr. Gross was present during most of Mr. Robbins’ testimony). He added that a lot of exercising can lead to severe pain. Asked whether a physical examination was warranted on February 6th, he replied; “The problem is we’re going through a ‘retrospectoscope’”.

He went on to say a singular episode of pain is unusual. [ 118 ] On cross-examination, Dr. Gross said that he wrote a September 7, 2012 open letter to residents at the QE II “to refute a ‘rumour that grew legs’”. He described the letter as an “apology for creating the strong impression” that he was the catalyst for the legal action against Dr. Bajwa. He added that Mr. Robbins had experienced an “unusual complication in a most unusual situation”. With the “retrospectoscope”, Dr. Gross said that the symptoms expressed by Mr.

Robbins’ on February 6 th warranted a physical examination, and added, “You assess relative to that unique situation, even if I don’t think [the situation is] severe, if they want to see me, I will see them”. The Law : [ 119 ] For a medical malpractice case founded on negligence to succeed, four conditions must be present. As Bourgeois, J. (as she then was) noted in Anderson v.

Queen Elizabeth II Health Sciences Centre , 2012 NSSC 360 , at paras. 41 – 42 : The elements of proof in a malpractice action are summarized by Dean Meredith in his text, Malpractice Liability of Doctors and Hospitals at p. 156 as follows: The success of a malpractice suit founded on negligence is dependent upon the existence of four conditions: First: There must have been a legal duty on the part of the doctor towards his patient to exercise care. This duty arises as a matter of law when the doctor takes on the case, and as already stated, is independent of contract.

Second: There must have been negligence on the part of the doctor, i.e. a breach of his legal duty to conform to the standards of proficiency and care required by law. Third: The patient must have suffered loss or injury. Negligence not resulting in loss or injury provides no ground for a civil action in damages. Fourth: The patient's loss or injury must have resulted directly from the doctor's negligence. In other words, the negligence must have been the determining (as distinct from the indirect or remote) cause of the damage.

[120] This text and the above quote have been cited extensively, including by the Supreme Court of Canada (see Cardin v. City ofMontreal (1961), (SCC), 29 D.L.R. (2d) 492 (S.C.C)), and by this Court (see Anderson v. Grace Maternity Hospital etal (1989), (NS SC), 93 N.S.R. (2d) 141 (T.D.) and Locke v. Lea, [1997] N.S.J. No. 186 (S.C.)). [121] As to the first condition, it is acknowledged by the Defendants that a duty of care was owed to Mr. Robbins.

Similarly, withrespect to the third condition, it is undisputed that the Plaintiff suffered a four to five inch below the knee amputated left leg, ankle andfoot with significant consequences. It is the standard of care and causation elements which the Court must consider. Standard of Care [122] Did one or both of the Defendants fall below the standard of care expected of them? If so, did this deficiency give rise to Mr.Robbins’ eventual amputation?

The Court is mindful in addressing this issue that the standard of care applicable to the time of the eventsin question must be considered, not one reflective of subsequent medical views and developments. [123] With respect to the standard of care, the parties have cited the statement of Schroeder, J.A. in Crits and Crits v. Sylvester et al.,(1956), (ON CA), 1 D.L.R. (2d) 502 (Ont. C.A.): Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree ofcare.

He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of thesame experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who doesnot profess to be qualified by special training and ability. [124] This standard has been referred to with approval on many occasions in Nova Scotia, including: Anderson v. Queen Elizabeth IIHealth Sciences Centre, supra; Anderson v. Grace Maternity Hospital et al, supra; Robichaud v. Bruce and Sayat (1988), (NS SC), 86 N.S.R. (2d) 421 (T.D.); Goguen v.

Crowe, (1987), (NS SC), 80 N.S.R. (2d) 36 (T.D.); Young v. St.Rita Hospital and Critchley, (1986), 75 N.S.R. (2d) 239 (T.D.). [125] The case before the Court involves the conduct of an orthopaedic resident and an orthopaedic specialist. When considering Dr.Bajwa’s care, I am mindful of Justice Bourgeois’ analysis at paras. 46 – 48 of Anderson: 46 …In Fraser v Vancouver Hospital, (SCC), [1952] 2 S.C.R. 36, the Court considered the standard of careexpected of two hospital interns. The standard of care is not lessened by the inexperience of a young doctor.

Rand, J. cautioned that anintern "must use the undertaken degree of skill, and that cannot be less than the ordinary skill of a junior doctor in appreciation of theindications and symptoms of injury before him, as well as an appreciation of his own limitations and of the necessity for caution inanything he does”. 47 The above has been recently followed and applied to medical residents. In Adair Estate v.

Hamilton Health Sciences Corp (2005), (ON SC), 32 C.C.L.T. (3d) 283, Harris, J. of the Ontario Superior Court of Justice considered a claim of negligencebrought against several defendants, including second and third year residents. After referencing Fraser v Vancouver Hospital withapproval, Justice Harris states at para. 137: Like any student of any profession or trade, a resident must not fail to understand his or her own inexperience, lack of knowledge andlack of skill.

For a student to ignore the certainty of these shortcomings and instead act in complex matters without the supervision of aprinciple is negligence of the highest order. 48 Again from the Ontario Court of Justice, the actions of a first year resident were considered in Bearden v. Lee, [2003] O.J. No.1261, 2003 CarswellOnt 1178. As noted in the following comments of Sanderson, J., a resident must be careful to not step beyond theirlevel of experience, or act unsupervised: 126.

While I would not have reached a similar conclusion if I had found she was acting on Lee's directions, I am of the view thatAbramson was also negligent. I accept Bearden's evidence that she discharged him with inadequate discharge instructions, even after heprotested that he was being sent home. She minimized his concerns, telling him that he had gastro-enteritis and that nothing more couldbe done for him.

When giving her evidence, she was very definite and obviously reluctant to admit any uncertainty about anything.While confidence is a positive attribute of an experienced doctor, [and while I have every reason to believe Abramson is now a fine andexperienced specialist,] I am of the view that on July 1-2, 1991 she inappropriately allowed herself to go unsupervised and confidentlypresented herself to Bearden as being more experienced and knowledgeable than she really was. She did not advise Bearden that she wasuncertain about the cause of his abdominal pain.

Her diagnosis of gastro-enteritis was unequivocal [but yet incorrect,] as was her advicethat nothing more could be done for him at TWH. Her records were inadequate. Her written discharge instructions, [which she stillmaintains were complete,] were incomplete. The combination of her diagnosis of gastro-enteritis and discharge instructions causedBearden to reasonably refrain from seeking follow-up monitoring and care and led to the rupture of his appendix and other adverseconsequences detailed elsewhere.

I accept Bearden's evidence that if he had been told to see his family doctor if the pain persisted, hewould have done so. [126] When considering both the care of Dr. Bajwa and Dr. Gross, I return to Anderson at paras. 49 and 50: 49 An important aspect of a standard of care analysis is the recognition that doctors do not have to act with perfection in terms of theoutcome of their professional actions. Clearly a doctor is not an insurer and does not guarantee a cure.

Dean Meredith in MalpracticeLiability of Doctors and Hospitals, writes at p. 63: Since the science of medicine is not an exact science, a doctor is not as a result liable for an honest error of judgment, provided he doeswhat he considers best in the patient's interests following a careful examination. The point is often overlooked by plaintiffs in medicalmalpractice suits ...

One cannot, therefore, assume negligence merely because an operation was unsuccessful, or because a patient sustained injury throughmedical treatment. And to hold a doctor responsible in damages, it is not sufficient to show his diagnosis was incorrect, or that headopted one of several recognized methods of treatment rather than another, or that complications followed an operation unless in eachinstance it is also shown that he failed to exercise the degree of skill and care required by law." 50 In Cardin v. City of Montreal, (1961), (SCC), 29 D.L.R. (2d) 492, Mr.

Justice Tachereau observed at p. 494: The doctor is not a guarantor of the operation which he performs or the attention which he gives. If he displays normal knowledge, if hegives the medical care which a competent doctor would give under identical conditions, if he prepares his patient before the operationaccording to the rules of the art, it is difficult to sue him in damages, if by chance an accident occurs. Perfection is a standard required bylaw no more for a doctor than for other professional men, lawyers, engineers, architects, etc.

Accidents, imponderables, what isforeseeable and what is not, must necessarily be taken into account. Causation [127] As noted above, the fourth element of proof, causation, is in dispute. The parties acknowledge the Supreme Court of Canada’sdecision in Snell v. Farrell (1990), (SCC), 72 D.L.R. (4th) 289 (S.C.C.) provides the foundation for the Court'scausation analysis.

In Anderson, Justice Bourgeois set forth the law on causation in detail at paras. 59 – 66, and I adopt her analysis. [128] Later in her decision, Justice Bourgeois had this to say about causation: 288 While the burden rests upon the plaintiff to establish causation, often, a defendant will elicit evidence to undermine the plaintiff'scase, including putting forward alternate theories of causation. In the present case, neither party has elicited direct evidence which wouldestablish with medical certainty the cause of Ms. Anderson's stroke.

To accept any of the theories of causation advanced, the Court will,by necessity, need to infer causation from the evidence presented. This is not an uncommon situation in the context of a medicalmalpractice action. [129] In coming to her ultimate disposition, Bourgeois J. opined: 306 In determining causation, the Court finds it appropriate to apply the "but for" test. A robust and pragmatic view of all of theevidence must be taken, given the nature of this case. Given the lack of decisive medical evidence as to causation, the Court must relyupon inferences arising from the evidence accepted.

I find that it is probable that but for the arterial punctures on April 5, 1997, Ms.Anderson would not have suffered the stroke on April 6. I find it probable that the artery punctured was the vertebral artery, whichprompted the development of a clot. This clot embolized, and became lodged in the base of the brain. Because of Ms. Anderson'sabnormal Circle of Willis, she did not have adequate compensatory blood flow to minimize or prevent the resulting damage to the areasof her brain. [130] At the Court of Appeal, Justice Bourgeois in Ketler v.

Nova Scotia (Attorney General), 2016 NSCA 64, noted at para. 30 thatcausation is a necessary element in a negligence action. She went on to discuss the legal test for causation, as recently articulated by theSupreme Court of Canada: 37 Clements is widely recognized as the most recent explanation of the test for causation in negligence actions. In Ediger v.Johnston, 2013 SCC 18, a medical malpractice claim, Justices Rothstein and Moldaver do not limit the applicability of the Court's earlierdecision. They state: 28 This Court recently summarized the legal test for causation in Clements v.

Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.Causation is assessed using the "but for" test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333,at paras. 21-22). That is, the plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injurywould not have occurred (Clements, at para. 8).

"Inherent in the phrase 'but for' is the requirement that the defendant's negligence wasnecessary to bring about the injury - in other words that the injury would not have occurred without the defendant's negligence" (para. 8(emphasis deleted)). [131] In Ediger (a case curiously omitted by counsel in their otherwise extensive books of authorities), a unanimous Supreme Courtreviewed the legal test for causation (paras. 28, 29) and re-stated the application of the seminal case of Snell v. Farrell: 36 The Court of Appeal's reasons also suggest that it understood the trial judge to have improperly relied on Snell v.

Farrell, …, inorder to draw an "inference of causation" (paras. 83-85). Snell stands for the proposition that the plaintiff in medical malpractice cases -as in any other case - assumes the burden of proving causation on a balance of the probabilities (pp. 329-30). Sopinka J. observed thatthis standard of proof does not require scientific certainty (Snell, at p. 328; Clements, at para. 9). The trier of fact may, upon weighingthe evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports theplaintiff's theory of causation.

In determining whether the defendant has introduced sufficient evidence, the trier of fact should take intoaccount the relative position of each party to adduce evidence (Snell, at p. 330). [132] I have considered the cited authorities from our Court of Appeal and the Supreme Court of Canada in my analysis anddisposition. I have also borne in mind the reliability and credibility of all of the witnesses. Below, I have zeroed in on the reliability and credibility of Dr. Bajwa, the Plaintiff and his wife in making critical findings referable to the February 6th telephone call.

Findings With Respect to the February 6, 2012 Telephone Conversation: [133] Recently, Justice Norton in Covey v. McNutt, 2020 NSSC 270, adopted Justice Warner’s statement concerning fact finding, and Isimilarly adopt the statement:

[54] I adopt the following statement about fact finding from Warner J. in Burghardt v Burghardt, 2019 NSSC 106: [44] Fact finding requires the court to assess both reliability and credibility. Reliability involves an assessment of the witness’scapacity to observe, recall and communicate accurately. Credibility involves the assessment of the witness’ believability and truthfulness.The most important factor is the application of common sense to all of the evidence, which can be tested in a particular case.

This isespoused in Faryna v Chorny, (BC CA), [1952] 2 DLR 354 (BCCA), at paras. 9 to 11. [45] Other indicia of reliability and credibility include the appearance of honesty, the accuracy and completeness of observations, thecircumstances between the parties, the consistency or inconsistency of their evidence, both internally and with other evidence before thecourt, and demeanour but with caution. [46] Demeanour was the central issue in the Supreme Court of Canada decision in R. v N.S., 2012 SCC 72. In all three sets of reasons,the court described the role of demeanor in the assessment of a witness’s evidence.

While all recognized that demeanour is not the mostimportant factor going into the assessment of credibility, there appeared to be agreement that determining credibility is not based on asingle factor but on the application of common sense to all of the evidence. The actual words used are the “visible or audible form of selfexpression manifest by a witness”, and together with the words used constitute the communication in court. [47] I am not required to believe or accept a witness’ evidence in its entirety.

I may believe or rely upon none, part or all of a witness’evidence, and attach different weight to different parts of it. The bottom line is that there is no magic formula for deciding what or howmuch to believe or rely upon, except the application of common sense. [134] In assessing the witnesses in this case, I found Mr. Robbins to be both reliable and credible. As for Ms. Robbins, she was crediblethroughout; however, the reliability of her testimony referable to her conversations with Dr. Gross during the weekend of February 10,2012 is questionable. Indeed, in this area I prefer Dr. Gross’ recollections.

Whereas Ms. Robbins was understandably tremendouslyupset and emotional, Dr. Gross (though admitting it was a very stressful time) was not overborne with emotion. [135] In assessing Dr. Bajwa’s reliability and credibility, I have carefully considered the totality of the trial evidence, while zeroing inon the critical telephone exchange of February 6, 2012. Dr. Bajwa relies on the protocol or standard practice to explain how she handled the call. She also relies on her February 22nd email. [136] Dr.

Bajwa cannot rely on a contemporaneous chart note to explain what transpired, because she clearly did not author such anote. Indeed, there is no chart note documenting the call. Although she says her memory of the phone call “crystallized” when she dealt with Mr. Robbins on the 9th, she neglected to record anything about the 6th until her February 22nd note. Despite how Dr. Bajwa characterizes the note (which she ultimately emailed to Drs. Amirault and Oxner on February 28th), I am dubious about her denial that itwas, in fact, written “for my lawyer in the event legal action is pursued against me”.

After all, this is what she wrote in the singlesentence first paragraph. I would add that I am similarly skeptical that she wrote this letter at a time when she says she cannot recallknowing whether or not Mr. Robbins’ left leg had been amputated. Rather, I suspect at this juncture that she knew full well much of what had happened to the patient, including the February 18th amputation. Among other things, we know that Mr. and Ms. Robbins metwith Dr. Amirault the day before Dr. Bajwa wrote her email account. She testified – and I believe her on this – that Dr.

Amirault asked her on February 21st or 22nd to provide him with her written account. [137] Although Dr. Bajwa attempted to minimize the circumstances of her being asked to write the account, I am of the view that beingasked to prepare a written account was a very significant event. She was a first year orthopaedic resident and the department chief told Mr. and Mrs. Robbins on February 21st that he had to talk to her “to see what happened” (exhibit 1, p. 116).

She wrote her account afterconsulting with the CMPA, and I must conclude, having reviewed all of the evidence, that her belated written account – just as it in no way approximates a chart note – does not represent what transpired on the February 6th call. [138] When I consider Mr. Robbins’ evidence about the content of the call, it impresses me as honest and reliable.

This was the sameman who watched YouTube videos about his hip procedure, called to question the lack of a prescription for blood thinners, and read overthe handouts (and even speculated about blood clots) after he encountered leg pain. [139] When Mr. Robbins phoned Dr. Bajwa, he was speaking with the orthopaedic resident for the first time, under personallysignificant and memorable circumstances. He took the initiative to make the call because he had experienced bilateral leg pain. Mr.Robbins wanted answers, and I find he persisted after Dr.

Bajwa initially told him to call his family doctor or present at the emergencyroom. Apart from the initial referral, Dr. Marsh had no

part in Mr. Robbins’ hip surgery. Mr. Robbins had been given Dr. Gross’number in the event of any problems. He had not been given the standing advice to go to his family doctor or the emergencydepartment. Having made the call and received Dr. Gross’ office message to call one of two numbers, Mr. Robbins now had anorthopaedic resident on the line. Having persisted, I find that he engaged Dr. Bajwa and explained his situation. I further find that Mr.Robbins’ version of what next took place on the call to be accurate. Among other things, I am of the strong view – notwithstanding Dr.Bajwa’s denials – that Mr.

Robbins told her that both of his lower legs felt fatigued. In this regard, the subsequent hospital chart notes note are replete with references to both legs bothering Mr. Robbins when he ultimately presented on February 9th. I would add that Ifound Dr. Bajwa most dismissive of these references when they were put to her on cross-examination. [140] I found Dr. Bajwa’s entire account of the February 6th phone call to be overly certain. Whereas Mr. Robbins was prepared toacknowledge certain areas where he was uncertain (e.g. he could not say whether Dr.

Bajwa said she could not physically assess himover the phone), Dr. Bajwa was emphatic about her recall. For example, she would not concede that Mr. Robbins requested that shelisten to his story. Further, she said she “specifically asked questions”, giving minute details (almost verbatim) about her questions andMr. Robbins’ answers. [141] Dr. Bajwa’s own expert, Dr. Howard, was critical of her failure to make a contemporaneous note of her February 6th interactionwith Mr. Robbins. Given the totality of the evidence in this area, I am not prepared to find Dr. Bajwa negligent for this oversight.

Nevertheless, Dr. Bajwa’s failure to record a chart note at any time is problematic and, as the below cases attest, further supports myfinding of the accuracy of Mr. Robbins’ version of the call. [142] As noted by Justice Lax in Kealey v. Berezowski, (ON SC), [1996] O.J. No. 2460 (Ont. Ct. (Gen. Div.)) atpara. 16: I also think that some weight should be attached to Mrs. Kealey's recollection of the explanations which were provided to her as to thereason for the failure. In the absence o

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