1994 S. H. No. 106474 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: ROBERT DOUGLAS BAIRD and DOUGLAS SINCLAIR and SHAUN JANES DECISION HEARD: Before the Honourable Justice D. Merlin Nunn, at Halifax, Nova Scotia on May 12,13,14 and 15,1997. DECISION: July 18, 1997 COUNSEL: Sandra MacPherson Duncan and Paul Arab O'Leary, for the Plaintiff Brian W. Downie and James L. Chipman, for the Defendant NUNN, J. The plaintiff alleges negligence by the two defendant medical doctors and claims damages arising from the negligence. The facts, as find them, are that on the evening of April 17, 1993, the plaintiff, between 6:30 p.m. and approximately 1:30 a.m. on Sunday, April 18th, visited with friends, drank few beers and then he and his friends visited three local drinking establishments, where the plaintiff indicates he had couple of beers at two of the places and one at the third and last. At about 1:30 a.m. he left alone and began walking home. As he approached Bell Road he decided to walk across the base of Citadel Hill as the fence there was open. When he got to the other side there was no opening in the fence and he decided to climb over it. The fence is an iron fence with iron pickets, pointed at the top. As he reached the top, he slipped and his right calf became impaled on picket. According to him, he was hanging, upside down, on the fence, for about half an hour before several young people helped him off the fence. He then walked to the Victoria General Hospital Emergency Department, arriving there at 2:20 a.m. He was first interviewed by the triage clerk, Jeffrey Newton, who took the initial history and whose notes are in Exhibit 2, Tab at page 2. These notes indicate the presenting complaint as puncture/tear wound received while climbing an iron fence. No mention is made of the fact that the plaintiff was impaled on the fence for half an hour and am satisfied that the plaintiff did not mention this fact. Before continuing, must indicate that the triage clerk's notes indicate an extremely low temperature of 33.6 and low blood pressure of 98/60. Nobody who subsequently dealt with the plaintiff seemed concerned, explaining that the digital tympatic thermometer used was notoriously inaccurate and that the plaintiff's presence and appearance was totally inconsistent with those readings. accept that such was the case. There is no evidence whatsoever to suggest that the plaintiff was in shock. Although these readings were referred to extensively in the trial, am satisfied that they have no bearing on the real matters of concern here. The triage notes also indicated that the plaintiff had consumed alcohol. Following triage the plaintiff was then assessed by the emergency nurse, Linda Foroughi, who noted, on pages and of Exhibit 2, Tab 6, that the plaintiff was drowsy and oriented and that the plaintiff caught his leg on metal fence. Again, there is no mention of the fact that the plaintiff was impaled for half an hour. In her testimony she explained that "drowsy and oriented" meant that the plaintiff was not drunk and that on scale where 15 is normal, the plaintiff would be 14. Again, accept her evidence that the plaintiff did not indicate he was impaled on the fence for length of time. also am satisfied that the plaintiff was not drunk: His drowsiness can be explained by the fact that he had been drinking and it was then about 3:00 a.m. should add that the plaintiff, himself, testified that he was not drunk. It was about an hour after arrival at Emergency before the plaintiff was seen by the defendant, Dr. Janes, an intern in the Emergency Department. On duty with him was the defendant, Dr. Sinclair, an emergency room specialist, who was Dr. Janes' supervisor. Dr. Janes testified that, following usual procedures, he read the triage clerk and nurse's notes and, then asked the plaintiff what happened. The plaintiff's response was that he was jumping fence and picket stuck in his leg. Dr. Janes asked him about the picket, how far it penetrated, whether anything was broken off the picket and whether there were any other injuries to which the plaintiff responded. Dr. Janes testified that no mention was made of being impaled on the fence and though that contradicts the plaintiff's testimony on this point, accept Dr. Janes' account of what was told. Dr. Janes then examined the leg, found no arterial or neurological damage, cleaned around and into the wound with saline and savlon solutions for about 10 minutes, then gave local anesthetic to freeze the wound area. The wound itself was gaping wound about cm across. He then put his finger in the wound to check if there were any other tracks of the wound and to make sure there was no foreign bodies in it. None were found. His finger had entered the wound to cm. He again wiped out the wound with gauze soaked in solution and syringed it out for further 10 minutes finding no foreign bodies. At this point Dr. Janes reported to Dr. Sinclair, indicating the history, what he had done and his physical findings. After discussion Dr. Sinclair advised him to further flush out the wound well, to close it and have the plaintiff see his family doctor the next day. Dr. Janes then flushed out the wound for another 10 minutes, sutured it with vertical mattress suturing and dressed the wound. He testified that, throughout the whole time he was treating the plaintiff, he was talking to him and told him to keep his eye on the wound for any sign of infection, to see his family doctor on Monday and, in the meantime to keep off his leg, to elevate it and to use crutches. He did not give or prescribe antibiotics, having made the judgment call that, in accordance with best practices, antibiotics are not required in young, healthy males where the wound is clean after extensive flushing out. On this latter point, the evidence bears out the wisdom of this decision and, as well, even if given, would not have altered the result. Dr. Janes testified that he looked at the whole leg, front and back and never saw any indication of wound on the front of the leg, nor did his finger probe indicate anything on the front of the leg. The plaintiff, however, testified that Dr. Janes asked him about mark on the front of his leg. have difficulty accepting the plaintiff's testimony on this point. The medical records prepared at the time make no reference to such mark or wound, Dr. Janes was definite that none was observed and Dr. Petrie, who was called as an expert by the plaintiff, indicated that the skin on the front of the leg would not show any such mark so soon after the injury had occurred. As result accept Dr. Janes' testimony on this point. In total, Dr. Janes spent approximately an hour with the plaintiff before discharging him. The doctor's notes at page of Exhibit 2, Tab contain the discharge advices noted in the preceding paragraph though they do not indicate anything about keeping an eye on the wound for any infection. The contents of the discharge recommendations were fortified by the nurse's discussions with the plaintiff on discharge. The plaintiff testified that no mention was made of infection or of what to look for if infection set in. However, in all the circumstances, particularly of the heavy flushing out and the conversation of Dr. Janes, am satisfied that such discussion did take place. Perhaps it was missed by the plaintiff due to his drowsy condition. Dr. Sinclair, an emergency medicine specialist, testified at length on the emergency room procedures and how interns work under the supervising physician. He confirmed that Dr. Janes reported to him the history and physical finding and that his recommendation was profuse cleaning before suturing and he agreed that antibiotics were not required. He had observed the wound as it was being sutured. Following discharge, the plaintiff returned to his apartment in Halifax, arriving there around 4:15 a.m. He was in some pain and around 8:00 a.m. he phoned his parents in Truro, told them what had happened and that his leg was very painful. His mother is nurse. His father came to Halifax and took him to Truro. Throughout the day his pain grew worse. At around 5:30 p.m. he went to the Truro Hospital Emergency Department, where he wasattended to by Dr. DiQuinzio, who took his history, examined his leg, took out the stitches, had X-rays taken, as well as blood tests and called in Dr. Curtis, surgeon. At this time, the plaintiff told Dr. DiQuinzio that he had been impaled on the fence for about 10 minutes. The result of this was he was advised that he would have to return to hospital to have the leg opened and debrided and that this would be best done in Halifax. He was then sent by ambulance to the Victoria General Hospital where at about 10:00 p.m., he again arrived at Emergency. He was admitted to Hospital, given four potent antibiotics in maximum doses after examination by an orthopedic intern, with X-rays ordered for the morning to compare with the Truro X-ray. The initial fear in Truro was the possibility of gangrene poisoning although this did not materialize. On Monday, April 19th, at about 3:30 p.m., Dr. Petrie performed the necessary surgery, fasciotomy and debridement of the infected right calf. In simple terms, after general anesthetic, Dr. Petrie explored the wound, found it extended through to the skin on the front of the leg, which by this time, showed signs of damage. That skin was excised and the muscle cut away to surgically clean wound (debrided). It was then irrigated and packed but not closed. The plaintiff spent the next three weeks in hospital during which time the dressings were cleaned frequently, the packing finally removed and skin graft was performed by Dr. Parkhill so that the wound would heal. The skin graft was approximately by 11 cm in size and was quite successful. In hospital he received an assortment of antibiotics, morphine, demerol, gravol, and Tylenol 3. Following the skin graft, he required physiotherapy to get his foot dorsi flexed as his foot was in an extended position for the skin graft. The final result, about one week after discharge, in the appearance of the leg, is shown in the photograph Exhibit 3, though its appearance has greatly improved by the time of trial. Following discharge the plaintiff was on crutches for to weeks. He now indicates that he has pain when walking up steep inclines or hiking, that he has difficulty sleeping, having to hang his right leg out, that he has pain when engaging in sports activities, that he is very aware of and embarrassed by the scar which restricts his dressing in shorts. As to sports, the plaintiff had hoped to have summer recreation jobs, but he indicated he had to turn down job with Sackville Recreation and could not apply for job with Sport Nova Scotia because he felt he could not perform with the pain. On cross-examination he indicated that he is not taking medication since June 1993 and there is nothing in day to day activities that he cannot do, though squatting causes some pain. He still plays some tennis and golf though not without pain. Although he formerly played volleyball, he has only done so once during which he injured his left leg which he attributes to his right leg injury. The testimony of other witnesses, notably Dr. William Stanish, sports medicine expert, does not support the plaintiff on this latter point. There is evidence that the plaintiff had, before this incident, some medical problems particularly rheumatological condition which affected some of his activities and there is note in Exhibit 2, Tab 3, Page 1, clinical record, that the plaintiff had to quit work as cook at the Sheraton Hotel because of low back problem. The plaintiff denies that he had to quit work and states he was laid off. only mention these points as they occurred in the evidence, but they are of no relevance. The plaintiff's father testified that he did not take the plaintiff to the hospital on the morning of April 18th because the plaintiff said he was instructed to see his family doctor on Monday. The same response was given to several suggestions during the day that they go to the hospital in Truro. Dr. David Petrie was qualified as an expert in orthopedic surgery and also in the emergency treatment of trauma to extremities. As he was the treating surgeon, he testified as to what he had done for the plaintiff, all of which have already referred to. Though he was so qualified by the Court, he is not an emergency room physician, nor is he certified as such and most trauma he sees is referred to him. With regard to the plaintiff's initial treatment, Dr. Petrie's opinions are expressed in Exhibits and 9. In Exhibit 8, Dr. Petrie states: "I do feel that the severity of the initial injury was not recognized by the treating physicians on his arrival in the Emergency Department. Whether this was problem in communication by the patient or failure by the intern and/or staff emergency room physician to properly inquire as to the nature of the injury, am not certain." (emphasis added) That letter continues with the notation that the plaintiff was impaled, hanging upside down for about twenty-five minutes. It then goes on to discuss "a through and through puncture wound of the calf with an impalement type history" and the manner such wound should be treated. Paragraph of that letter is quite significant. It states: "I think it is difficult to respond as to what the duration and nature of his hospitalization and treatment would have been if the wound had been treated primarily with surgical debridement. Some of these impalement (emphasis added) problems can be very difficult to manage and do not always respond quickly to our treatment, that is incision, drainage, debridement, antibiotics, elevation, etc." In the next paragraph he indicates that the plaintiff's scarring is result of the treatment and would have occurred in any event. After indicating that he would think it appropriate to have kept the plaintiff in hospital for observation, he concludes by saying that "these situations occur not uncommonly and it is left up to the treating physician as to how far one should go in managing these wounds." In his subsequent letter, Exhibit 9, written two years later and responding to questions of plaintiff's counsel, Dr. Petrie expresses the opinion that the medical history take by Dr. Janes was inadequate. The relevance of the length of time impaled was important as it indicates significant period during which contamination and damage to the soft tissues was likely to take place as opposed to gunshot wound for example. In his opinion, this wound should have had surgeon's consultation at the initial presentation. He then provides his opinion that antibiotics should have been prescribed, the plaintiff should have been kept in hospital, and the would should not have been closed. He does state that the cause of the subsequent infection was contamination in the wound that occurred at the time of impalement. He concludes: "It is my opinion that Doctor Janes and Doctor Sinclair did not take the necessary steps as to how to best manage this wound because they really did not appreciate the depth and nature of the wound." Dr. Jan Ahuja, was called by the defence and qualified as an expert in Emergency Medicine, being certified both in the United States and Canada. He practices in Ottawa. He was provided with all the medical reports and, in his opinion, the note taking was adequate as he explained that in emergency treatment, it is the standard of care that is most important and not the note taking especifically with the number of persons treated daily in an emergency facility. He opined that the level of care and procedures followed here were appropriate and within the standard of care of proper emergency care. He concluded that emergency care is initial treatment and the plaintiff here was advised to quick follow. As well, in emergency, judgments are made with little information. He was satisfied that the discharge advice was adequate and acceptable and shows careful consideration and assessment. Dr. Ahuja disagreed with Dr. Petrie in number of areas. First, he testified that in his opinion, there was no reason to involved the surgeons as the initial examination did not reveal the presence of any foreign bodies in the wound. It was not through and through wound at the time of initial presentation, nor were there any signs of infection. The really very significant point of impalement was never revealed to the triage clerk, the nurse or Dr. Janes. While admission to hospital is always an option, there was nothing here at the initial time which warranted admission. As well, nothing indicated debridement of the wound. On the whole, in view of the evidence Dr. Janes had at the time, the decision to thoroughly flush out the wound and close it was appropriate and within the standard of an emergency room physician. At the time of closing the wound, there was no concern for infection as the wound was thoroughly cleaned with no reason to suspect soft tissue damage or infection, though the discharge instructions contemplated that any onset of infection would be discovered. It was his opinion that the quite lengthy impalement and the obvious movement to dislodge and actually getting off the picket led to the infection and these were facts the plaintiff had not revealed on his initial presentment at the Emergency Room. transcript of the evidence in this case will reveal that every aspect of the emergency room treatment of the plaintiff was examined and questioned minutely. However, it is not for me to deal with each particular process of emergency room practice and make judgement thereon. My concern is whether, on these facts, the performance of the defendants, or either of them, was negligent and, if so, what are the damages following therefrom. Before dealing with the law, and on the matter of damages, Dr. William Stanish, was called by the defence and qualified as an expert in orthopedic surgery, sports medicine, muscle injury and treatment. He examined the plaintiff, at the request of the defendants' counsel, and filed his report, which is Exhibit 17. He found 20% loss in ability to dorsi flex his foot which was caused by the scarring and legitimate difficulty in ability to squat. He indicated that it would be difficult to determine if the result would have been different if the plaintiff had been sent to surgery when he initially presented. In other words, there might have been similar degree of debridement though possibly the infection led to more. In his view if, in the judgement of the treating physician, the wound was clean, then surgery is not indicated. As to the final result, it is Dr. Stanish's opinion that the plaintiff suffers very mild disability. Turning to the law, there is not doubt the defendants owed legal duty to the plaintiff. But, to recover, the plaintiff must show negligence on the part of one or both of the defendants and then that he suffered loss or damage as result, with that loss flowing directly from that negligence of the defendants, or either of them. The standard of care required at law is, as stated by Schroeder, J. A. in Crits and Crits v. Sylvester et al, 1956 CanLII 34 (ON CA), [1956] D.L.R. (2d) 502 at p. 508: "Every medical practitioner must bring to his task reasonable degree of skill and knowledge and must exercise reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing, and if he holds himself out as specialist, higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability." In the present case then the standard to apply for the defendant, Dr. Sinclair, is higher than for the defendant, Dr. Janes. Dr. Janes, as an intern, must exercise the degree of skill and care which is not less than the ordinary skill of junior doctor. Acknowledging the standard, one cannot assume negligence merely because particular treatment was unsuccessful or that further complications arose. This is not perfect world and though, to some, the standard of perfection is expected, such is not always the case. If the treating doctor chose one of several recognized methods of treatment, though that particular method was unsuccessful and another would have been better, he is not negligent because of his lack of success. As Taschereau, J., stated in Cardin v. City of Montreal (1961), 1961 CanLII 77 (SCC), 29 D.L.R. (2d) 492, at p. 494: "The doctor is not guarantor of the operation which he performs or the attention which he gives. If he displays normal knowledge, if he gives the medical care which competent doctor would give under identical conditions, it is difficult to sue him in damages, if by chance an accident occurs. Perfection is standard required by law no more for doctor than for other professional men, Accidents, imponderables, what is foreseeable and what is not, must necessarily be taken into account." Perhaps one of the better summaries of doctor's liability is contained in this passage from MacDonald v. York County Hospital (1972), 1972 CanLII 392 (ON SC), 28 D.L.R. (3d) 521 which was adopted by Hallett, J. in Leadbetter and Leadbetter v. Brand and MacLellan (1980), 37 N.S.R. (2d) 581 at 591 and by Boudreau, J. in Grant Estate v. Mathers et al (1991),100 N.S.R. (2d) 363 at p. 373: "It cannot be assumed that doctor has been negligent merely because the operation was unsuccessful or because the plaintiff sustained injury. He is protected from liability where he has honestly and intelligently applied his mind to the problem and arrived at conclusion or judgment upon which he acted, although, that conclusion or judgment proves subsequently to be incorrect. Whether doctor's mistake is classified as an error of judgment or negligence really depends on the standard of care required in the circumstances. If the doctor's act is in accord with the standard or care but, nevertheless, still caused injurious results he will be said to have committed an error of judgment. If his act or judgment is so unreasonable that an average practitioner would not have proceeded in this manner, he will likely be held to be negligent." At first blush it would appear that there is decided difference of opinion between the medical experts who testified as to what should have been done but, upon closer inspection such is not the case. Dr. Petrie's opinion is based upon the knowledge that the plaintiff was impaled for approximately 25 minutes and that the injury was "through and through" wound. Those two facts but, perhaps, mainly the first lead him to the conclusion of what should have been done. However, those two facts were not within the knowledge of the defendants. The plaintiff did not reveal that he had been impaled for length of time and, as Dr. Petrie stated, that was very important fact as it would have indicated soft tissue damage and called for more than simple irrigation. Dr. Janes was presented with fresh wound, with no indication that it had penetrated through the leg. He examined it, irrigated it profusely and found no presence of foreign matter. Indeed, there may never have been any foreign matter in the wound as the later infection was attributed to the length of the impalement and the damage to tissue which was not evident at the time. am satisfied that he met the required standard of care, exercised the appropriate skill and adopted well accepted method of treatment. No fault can be found with his exercise ­of judgment on the appropriate treatment at the time. Similarly, he can not be faulted for not prescribing antibiotics, though there are different views on this among medical experts. His view, supported by Dr. Sinclair, that they were not required with clean wound, after profuse irrigation, for healthy young male is unassailable. great deal was made in argument of the discharge instructions given by Dr. Janes and fortified by the nurse by the plaintiff's counsel who alleged they were inadequate. The notes on discharge instructions are indeed brief but what is overlooked is that Dr. Janes was talking to the plaintiff throughout the treatment though admittedly the plaintiff was drowsy and may have fallen asleep. am satisfied that the possibility of infection was mentioned and the instruction to see his family doctor the next day was clearly indicative of the possibility of complications. certainly cannot say that he was negligent in not giving adequate instructions on discharge. While the standard for Dr. Sinclair is higher because he is specialist, there is nothing in the evidence to indicate any failure on his part to meet that higher standard. He also had no more information than Dr. Janes and, following standard emergency room procedures, with the information of Dr. Janes, his advices in the case of the wound, as presented, were appropriate and within the type of performance expected of an emergency medicine specialist. On the totality of evidence, it is clear that the subsequent infection was caused by the injury itself and nothing done by the defendants contributed to it in any way. Essentially, their treatment was ineffective. Though it is, in retrospect, true that the defendants underestimated the nature and extent of the injury, the real fault lies with the plaintiff who, for whatever reason, failed to reveal fully what had happened to him. There is no doubt that the wound observed by Dr. DiQuinzio and later by Dr. Sinclair and the surgical staff and Dr. Petrie was very different from the same wound observed by the defendants on first presentation at the Emergency Department, but that is attributable to the infection which set in. During the trial one troublesome point was whether the result, i.e. the debridement of muscle tissue and the subsequent skin graft and resulting scars and subsequent debilities would have been the same if the plaintiff had been kept in hospital and operated on on the Sunday, April 18th. No satisfactory proof was offered that suggested differently and can only find that, in this regard, the plaintiff has failed to meet his burden of proof. Even if were wrong in finding no negligence on the part of the defendants, there is no satisfactory evidence that any of the plaintiff's damage resulted from the acts of the defendants. At best the evidence might permit the argument that perhaps more tissue had to be removed because of the infection, but that, again, does not contribute much to calculation of damages. As to damages, the plaintiff's counsel argued for damage award in the $20,000.00 to $30,000.00 range. On the evidence presented to me, am satisfied that his disability is very mild and, if were wrong in my determination that the defendants were not negligent, would have assessed damages at $3500.00 allowing nothing for the scar or the embarrassment due to it as that is attributable to the injury itself and would have resulted in any case. In conclusion, find that the defendants and each of them did not fall below the standard of care required of them in their treatment of the plaintiff. Further the plaintiff's loss is not attributable to any of the acts of the defendants but rather is the direct result of the injury he suffered. The plaintiff\'s case, therefore, is dismissed with costs. J. July 18, 1997 Halifax, Nova Scotia
The plaintiff's leg was impaled for 25 minutes on an iron fence which he had attempted to climb for. He was treated at the emergency department of the Victoria General Hospital for an hour. He did not inform the doctors as to the length of time he had been impaled. Upon his release he was advised to watch for any infection. He was not issued antibiotics. The wound quickly worsened, and the plaintiff was forced to undergo surgery and a skin graft to repair his leg. He sued the doctors who initially treated him for negligence. Dismissing the action, that the subsequent infection was caused by the injury itself and nothing done by the defendants contributed to it in any way. While the defendants underestimated the nature and extent of the injury, they provided a recognized method of treatment based upon the knowledge they had. The real fault lies with the plaintiff who failed to reveal fully what had happened to him.