2005 BCSC 74err1.doc Carlsen v. Southerland et al

Before: The Honourable Mr. Justice Bouck

Reasons for Judgment

Counsel for the Plaintiff:	M.J. Velletta and G.T. Rhone
Counsel for the Defendants:	D.W. Pilley and J.K. Gibson
Date and Place of Trial:	20041115-20041118
	Victoria, B.C.

INTRODUCTION

[1] Ms. Carlsen alleges that Dr. Southerland was negligent when he operated on her spinal disc at the Royal Jubilee Hospital on 28 January 1999. She suffered serious personal injuries and is permanently disabled. Dr. Southerland contends that he met the appropriate standard of care in the circumstances.

[2] Counsel advised me that Ms. Carlsen discontinued her action against the Capital Health Region. The remaining parties agreed to the amount of damages. Only liability is in dispute.

FACTS

[3] Ms. Carlsen is 35 years old. She has a grade 11 education and is a qualified nurse’s aid. She is a single mother with a 15-year-old child. Because of the spinal surgery, she can no longer work. Prior to her operation, on 28 January 1999, she consulted Dr. Southerland, an experienced orthopaedic surgeon. She complained of significant pain in her right leg. He concluded she had a disc herniation at the L4/5 level. She had previous disc surgery at the L4/S1 level in May 1996.

[4] On 28 January 1999, nurses placed her on the operating table with her stomach down. For better surgical access to her spine, the doctor raised the centre part of the table. The operation involved a delicate touch. During part of the surgery, Dr. Southerland could not see the area where he placed his instruments. He relied on his sense of feel and touch and not on his sense of vision. He attempted to scrape or pick loose fragments from the top side of the disc so that they would no longer impinge upon a nearby nerve that was causing her pain.

[5] Unfortunately, he went too far forward with the instruments and cut both her iliac artery and the common iliac vein. At that location, they run vertically down the body just in front of the spinal discs. He immediately noticed some bright red blood in the disc space but the bleeding soon stopped. He concluded nothing untoward had happened. He closed the wound and sent Ms. Carlsen to the post-anaesthetic recovery room.

[6] Shortly after, Ms. Carlsen’s heart rate rose from 90 to 165 beats per minute. She complained of left leg pain and she was tender in the abdomen. The medical staff undertook intravenous resuscitation. They decided there was a cut in the left anterior iliac artery. It had allowed blood to flow freely into the abdominal cavity.

[7] Dr. Southerland then called Dr. Griswold, a vascular surgeon. He was on his way to perform surgery at another Victoria hospital. He cancelled that planned operation and drove over to the Royal Jubilee Hospital. When he arrived, he began urgent vascular exploration and repair. Dr. Griswold found cuts to the iliac artery and the common iliac vein. During and after completion of the repair, Ms. Carlsen received 13 units of blood.

[8] For some time after the surgery, Ms. Carlsen complained of left leg pain and thigh sensitivity. She went to see Dr. Southerland a few times after she left hospital. On one occasion, he apologized to her for what had happened. She showed gradual improvement over the next year or so. In January 2000, an MRI examination revealed a lesion on the left at L3/4 that may have caused her agonizing pain in her right leg. Ms. Carlsen did not want any further back surgery. At the time of trial, she was taking morphine to control the pain.

ISSUE

[9] Was Dr. Southerland negligent for failing to meet the appropriate standard of care when performing disc surgery on Ms. Carlsen?

ANALYSIS

[10] As an orthopaedic surgeon, Dr. Southerland’s standard of care was: “to have and exercise the degree of skill of an average specialist in his field": Wilson v. Swanson (1956), 5 D.L.R. (2d) 113 at 124 (S.C.C.).

[11] Expert witnesses testified about the type of surgical instruments they might use in this kind of surgery. They did not all agree. The plaintiff did not prove to my satisfaction that Dr. Southerland failed to meet the necessary standard of care in performing the operation by allegedly using the wrong instruments.

[12] Similarly, the parties introduced evidence about the after care treatment Dr. Southerland gave Ms. Carlsen once the doctors and nurses discovered the reason for the excessive bleeding. Again, the plaintiff did not prove to my satisfaction that Dr. Southerland failed to meet the appropriate standard for after-care treatment in these circumstances.

[13] What matters is whether Dr. Southerland met the necessary standard of care when he inadvertently cut the vein and the artery while attempting to clean out the disc. The cutting of the vein and artery were the cause of Ms. Carlsen’s disability. If Dr. Southerland used the instruments suggested by the plaintiff and still cut the vein and the artery, he could be liable to Ms. Carlsen for failing to meet the appropriate standard of surgical care and causing her injury. Similarly, if Dr. Southerland provided perfect after-care treatment but still cut the vein and the artery, he could be liable to Ms. Carlsen for failing to meet the appropriate standard of surgical care and causing her injury.

[14] The plaintiff called Dr. George S. Aitken, orthopaedic surgeon, to testify as to the standard of care that Dr. Southerland should have followed. He appears in court from time to time on behalf of both plaintiffs and defendant doctors. He concluded that the surgical injury to Ms. Carlsen could have been avoided. He felt that Dr. Southerland should not have penetrated beyond the front of the disc or the annulus fibrosus into the area of vein and artery. He questioned Dr. Southerland’s choice of surgical instruments. He was of the opinion that Dr. Southerland used pointed cutting instruments instead of blunt ones. He said he had done many of these operations over 22 years and never ventured past the front of the annulus fibrosus. He favoured the technique of marking the surgical instruments to avoid penetrating past the annulus fibrosus.

[15] In support of his opinion that Dr. Southerland was negligent he relied in part upon a 1986 text, Charles H. Epps, “Vascular or Visceral Injury During Lumbar Disc Excision: in Complications in Orthopaedic Surgery, 2nd Edition, vol. 2 (Philadelphia: J.B. Lippincott, 1986) at 1197. The learned author stated that surgeons “must be constantly aware of the possibility of anterior penetration of the annulus allowing vascular or visceral injury.” The author wrote: “Vascular injury, when it occurs, is more often sufficient to produce exsanguination if not controlled quickly. This is reflected by the mortality rate reported in the literature (23%-50%). The surgeon should exercise constant care to try to avoid this complication in lumbar disc excision.”

[16] The defendant called two eminent specialists to rebut Dr. Aitken’s opinion. The first defence orthopaedic surgeon gave evidence by way of video. For several reasons, that method of taking evidence is something to be avoided where possible. Contrary to what happens in a courtroom, the witness faced sideways to the camera and the questioner was out of camera sight. The witness answered questions while seated at a boardroom type table dressed in casual clothes. Since the witness was not in the courtroom, I did not have the opportunity to question him in order to clear up any misunderstandings. This artificial method of presenting evidence cannot begin to duplicate the necessary formality and importance of the task created by a courtroom.

[17] This first defence surgeon criticized Dr. Aitken’s evidence. He said there was no need for Dr. Southerland to mark his surgical instruments as a check in ascertaining the depth of penetration. He supported the type of surgical instruments used by Dr. Southerland during the operation.

[18] In this regard, he wrote that the anatomic challenges presented by Ms. Carlsen’s body increased the risk of injury to the artery and the vein despite the due care of Dr. Southerland. He said in the past there was a tendency to more aggressive removal of disc material from the disc space but currently, most spine surgeons restrict disc removal to fragments of the disc that are loose or unstable. He admitted that the complication of cutting the vein or the artery can occur with experienced spine surgeons, although that does not happen frequently.

[19] The second defence doctor’s evidence was more to the point. He agreed with the first defence doctor that about ten years ago, surgeons stopped using aggressive techniques in cleaning out the disc. Now, surgeons just pick up the loose material that may impinge upon a nerve. He conceded there was a known risk of injury to the vein and the artery in this type of surgery. He said the medical literature contains examples of a significant number of cuts to the vein and the artery arising from disc surgery and that there is a high death rate unless the patient receives instant care.

[20] He also agreed that Dr. Southerland’s instruments penetrated beyond the front part of the disc. Nonetheless, he said Dr. Southerland’s techniques were within the standard of care of a specialist surgeon since the cutting of the vein or artery was only a misadventure.

[21] The second surgeon relied in part upon an article written by Robert Goodkin M.D. and Lewis L. Laska Ph.D. J.D. titled “Vascular and Visceral Injuries Associated with Lumbar Disc Surgery: Medicolegal Implications” (1998), 49 Surg.Neurol 358. The authors suggest that lumbar disc surgery involving injury to a major vessel or viscera in which litigation results, giving the impression that it is caused by negligence, is not borne out by the literature. At page 364, the learned authors wrote:

Today, a surgeon performing lumbar discectomies should be aware of this complication and, theoretically, with due care should be able to avoid it, because neither the retroperitoneal vessels nor intra-abdominal viscera are within the immediate operative field. Most surgeons, however, consider this occurrence a known complication that can occur even with careful attention to the operative technique and, therefore does not represent malpractice.

And, at page 367:

Although a perforation of the anterior annulus fibrosus/anterior longitudinal ligament causing a vascular and or visceral injury may be caused by negligence, it is difficult to prove. Its occurrence is classified as a technical error, but the literature presents circumstances that may explain some cases.

[22] I am aware that the opinions expressed in these articles are not admissible for me to consider as proof of their truth since the authors of the articles never testified under oath and exposed themselves to cross-examination. I only mention them as part of the material that the defence professional witnesses relied upon in giving their evidence.

[23] Like all negligence cases, the plaintiff must prove three essential elements. First, that the defendant owed a duty of care to the plaintiff. Second, that the defendant breached that duty of care by failing to meet the relevant standard of care. Third, that the plaintiff suffered damages as a direct result of the defendant’s negligence. There does not seem to be any dispute over whether Dr. Southerland owed Ms. Carlsen a duty of care. Nor does Dr. Southerland contest the third ingredient that if he is found negligent the damages suffered by Ms. Carlsen were a direct result of his negligence. The only issue I have to decide is whether Dr. Southerland met the relevant standard of surgical care when performing the discectomy.

[24] Picard and Robertson, Legal Liability of Doctors and Hospitals in Canada, 3rd Edition (Scarborough: Carswell, 1996) at 186, concisely points out the way I should examine these issues:

Thus the medical practitioner is measured objectively against a reasonable medical person who possesses and exercises the skill, knowledge and judgment of the normal, prudent practitioner of his or her special group. The comparison is made with reference to the particular circumstances at the material time. The inquiry into the doctor’s milieu will fall into three broad categories:

i. the education, experience and other qualifications of the doctor;

ii the degree of risk involved in the procedure or treatment;

iii the equipment, facilities and other resources available to the doctor.

[25] On the evidence I find that Dr. Southerland had the necessary skill, experience and qualifications to perform the surgery on Ms. Carlsen. When performing the discectomy, Dr. Southerland was aware of the potential danger that he might cut the artery and the vein if he allowed his instruments to protrude past the front of the disk. There is no evidence suggesting he lacked the required equipment, facilities and other resources necessary to perform the surgery.

[26] The law says that the surgeon’s standard of care rises along with the increase in this degree of risk: Picard, supra, at 193:

The standard of care is influenced by the foreseeable risk. As the degree of risk involved in a certain treatment or procedure increases, so rises the standard of care.

[27] The evidence shows that Dr. Southerland was aware of the risk of cutting the vein or the artery at the time of the surgery. In his admirable zeal to achieve perfection in cleaning out the disc, he unfortunately strayed into forbidden territory.

[28] Ter Neuzen v. Korn (1995), 11 B.C.L.R. (3d) 201 (S.C.C.), helpfully sets out seven principles and a summary that apply to a medical doctor’s standard of care:

1. A Specialist’s Standard of Care

... A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field: ... Ter Neuzen v. Korn at para. 33.

2. A Physician’s Knowledge at the Time

... The conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence: ... Ter Neuzen v. Korn, at para. 34.

3. Prevailing Standards at the Time

... courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailing standards of professional knowledge: ... Ter Neuzen v. Korn, at para. 34.

4. No Negligence if Complying With

Common Practices at the Time

It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent: ... Ter Neuzen v. Korn, at para. 38.

5. Common Practices Not Always Determinative

... The fact that a professional has followed the practice of his or her peers may be strong evidence of reasonable and diligent conduct, but it is not determinative. If the practice is not in accordance with the general standards of liability, i.e., that one must act in a reasonable manner, then the professional who adheres to such practice can be found liable, depending on the facts of each case: Ter Neuzen v. Korn, at para. 42.

6. Common Practices Must Conform With Common Sense

... Where a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent. ... For example, where there are obvious existing alternatives which any reasonable person would utilize in order to avoid risk, one could conclude that the failure to adopt such measures is negligent notwithstanding that it is the prevailing practice among practitioners in that area: Ter Neuzen v. Korn, at para. 44.

7. Experts Opinion As to Standard of Care Not Conclusive

... General practice of the defendant and some others does not constitute a complete defence. It is some evidence to be taken into consideration on the question of negligence but it is not conclusive on Court or jury. If it were a defence conclusive on jury or Court, a group of operators by adopting some practice could legislate themselves out of liability for negligence to the public by adopting or continuing what was an obviously negligent practice, even though by a simple precaution, plainly capable of obviating danger which sometimes might result in death, was well known ... If a practitioner refuses to take an obvious precaution, he cannot exonerate himself by showing that others also neglect to take it: Ter Neuzen v. Korn, at para. 48.

8. Summary - Common Practice - General Rule - Exception

I conclude from the foregoing that, as a general rule, where a procedure involves difficult or uncertain medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard of medical practice negligent. On the other hand, as an exception to the general rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he or she was merely conforming to such a negligent common practice: Ter Neuzen v. Korn, at para. 51.

[29] In Fontaine v. British Columbia, [1998] 1 S.C.R. 424 at 435 the Supreme Court of Canada described how a finder of fact should assess circumstantial and direct evidence designed to establish negligence:

It would appear that the law would be better served if the maxim [res ipsa loquitor] was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.

[30] Looking at all the direct and circumstantial evidence there is proof that Dr. Southerland cut Ms. Carlsen’s vein and the artery while performing the discectomy. From this, I conclude that Ms. Carlsen established on a balance of probabilities a prima facie case of negligence against Dr. Southerland. There is no evidence that she agreed to surgery that could involve the cutting of her vein and artery. Nor did Dr. Southerland intend to do that when he was cleaning out the disc. He did so inadvertently or carelessly.

[31] In these circumstances, Dr. Southerland must present evidence "negating that of the plaintiff or necessarily the plaintiff will succeed". The evidence negating negligence is that of the two defence doctors. Both said that even experienced spinal surgeons cut the artery, the vein or both when performing discectomies. Therefore, the defendant argues, Dr. Southerland's standard of care complied with the recognized and respectable practice of spinal surgeons.

[32] Evidence that tends to establish a failure of Dr. Southerland to meet the appropriate standard of care seems to be as follows:

- He knew there was a danger of cutting the artery or the vein if he allowed his instruments to go past the front or annulus fibrosus portion of the disc.

- He knew he had to be very cautious in preventing this from happening but in his attempt to thoroughly clean out the disc he overshot his intended target.

- He knew or ought to have known that for the past 10 years spinal surgeons stopped using aggressive techniques in cleaning out the disc. The reasonable inference one can draw from this change of practice is that spinal surgeons adopted it in order to reduce as much as possible any potential injury to the vein or the artery.

[33] The negating evidence the defendant asks me to apply comes from the testimony of the two defence doctors. Both said that cutting the vein or the artery during a discectomy happens to even the best surgeons. The second defence doctor said it was just a misadventure or an adverse event. Defence counsel argues that while the life-threatening mistake of cutting the artery and the vein rarely happens, it is an unpreventable mistake. Thus, he contends that Dr. Southerland’s surgical skills met the standard of care required of him at the time.

[34] The Shorter Oxford Dictionary defines a “standard” as “a definite level of excellence ...”. Hence, the law tries to encourage the pursuit of excellence by all professionals and discourage the acceptance of mediocrity. At one end of the scale, the law says that courts should not hold professionals to a standard of perfection. At the other end, the law does not allow professionals to immunize themselves from liability flowing from careless acts by establishing amongst them a standard of care that is obviously negligent when a simple precaution would have prevented the damage.

[35] Because this "unpreventable mistake" could cause Ms. Carlsen’s death, that eventuality raised the level of Dr. Southerland’s standard of care. Standard medical practice would then dictate that Dr. Southerland should have prepared himself for this event by having a vascular surgeon standing by should it occur. He did not. Moreover, there is no evidence indicating the two defence doctors or their other colleagues took this precaution when they performed discectomies on their patients. The defence lack of evidence on this point substantially weakens the defence doctors’ opinions that Dr. Southerland’s surgery was within the surgical level of excellence for discectomies.

[36] Assume that very experienced general practitioners occasionally prescribe the wrong medicine causing serious injury or death to their patients. On the defence theory, this would mean that other general practitioners who do the same are acting within their appropriate standard of care. That cannot be the law for general practitioners. Nor can it be the law for other medical professionals.

[37] The obvious precaution that Dr. Southerland should have taken was to ensure that he not let his instruments penetrate past the annulus fibrosus. The evidence from both sides was that most other spinal surgeons are able to comply with this standard while performing a discectomy. In other words, the level of excellence the law required of Dr. Southerland was much higher than the level of the small number of spinal surgeons who occasionally cut a patient’s vein or artery.

[38] In Kapur v. Marshall et al (1978), 19 O.R. (2d) 478, the patient died as a result of the defendant spinal surgeon committing a similar mistake to that of Dr. Southerland in this case. The learned trial judge found the defendant acted within the appropriate standard of care. I am unable to agree with that decision for the reasons mentioned above.

[39] Dr. Southerland struck me as an honest, conscientious surgeon who tries to do his very best for every patient. On this one particular occasion, he made an unfortunate mistake amounting to negligence. Probably, it will never happen again.

JUDGMENT

[40] There will be judgment for the plaintiff on the issue of liability. Costs follow the event.

“J.C. Bouck, J.”
The Honourable Mr. Justice J.C. Bouck

January 27, 2005 – Revised Judgment

On the first page of the Reasons for Judgment, Mr. Velletta’s name was incorrectly spelled.

Citation:	*Carlsen v. Southerland et al,*
	2005 BCSC 74