Quebec Superior Court Rulings

Orthopaedic surgeon ordered to pay $100,000 to patient after back surgery

An orthopaedic surgeon was ordered by a Quebec court to pay a Quebec City man $100,000 in non-pecuniary damages after he was found to be at fault for one of three back surgeries he performed on the patient.

Dr. Jean-François Roy, one of a handful of Canadian orthopaedic surgeon capable of performing disk prosthesis’, a procedure that is less popular than spinal (vertebrae) fusions, was sued by Daniel  Tremblay, a fifty-something entrepreneur, and his wife sued for $2.2 million for three back surgeries he carried out. Tremblay, afflicted with back pain since 2003, alleges that he suffered harm because of the surgeries.

But in a 35-page ruling that highlights the challenges patients face when launching a medical malpractice suit, Quebec Superior Court Justice Daniel Dumais held that Dr. Jean-François Roy was at fault for only the second surgery he conducted on Tremblay.

Dr. Roy diagnosed Tremblay with spinal stenosis, a narrowing of the spaces within the spine, which can put pressure on the nerves that travel through the spine, and performed a disk prosthesis’ operation on Tremblay on September 2011. Tremblay was told that in approximately 90 per cent of the cases, 50 per cent of patients got better. Some eight per cent though suffered “significant pain.”

Tremblay was one of the unfortunate ones; his disk prosthesis dislocated, the first time that Dr. Roy says he saw this take place. A second surgery was performed a month later: replacing the prosthesis was impossible so Dr. Roy removed the prosthesis and put in its place a stand-alone intervertebral fusion cage. Made from various materials, including metal or carbon graphite fiber, the cage is placed in the inter-body space and packed with bone graft to help stimulate bone growth. But that surgery too failed to provide Tremblay with relief from pain. A third surgery followed suit, with similar results.

A medical malpractice suit generally raises three issues, points out Justice Dumais. First, it must be determined if the medical professional or establishment committed a fault. Second, it must be proven that the medical procedure, professional and/or establishment caused harm. And finally, if fault is proven, the determination of compensation must be evaluated.

“The hoped result was not obtained,” said Justice Dumais in Tremblay c. Roy 2018 QCCS 2486. “The Court agrees. But it is insufficient to conclude that a (medical) intervention was not appropriate. More than one option existed. The one chosen did not work out. That is regrettable.”

But Justice Dumais held that Dr. Roy should have been more diligent when he performed the second surgery on a patient. The disk prosthesis, which was implemented in the first surgery, dislocated for reasons unknown. That revealed a problem. And Dr. Roy should have done more to figure out what was the cause of the dislocation, added Justice Dumais. He could have consulted with another colleague, sought advice, conduct further tests, or reach out to the manufacturers who produce the medical devices. “None of this was done,” found Justice Dumais. “The Court finds that there was a fault in the preparation and execution of the second surgery.”

The award granted to Tremblay falls in line with jurisprudence. A 2013 book entitled After the Error: Speaking Out About Patient Safety to Save Lives reveals the daunting odds patients face to win a medical malpractice suit in Canada. Slightly more than 4,500 lawsuits were filed against Canadian doctors from 2005 to 2010, reveals the book. Of those, nearly 3,100 were dismissed or abandoned “because the court dismissed the claim or the victim or the victim’s family quit, ran out of money or died before trial.” Out of 521 cases that went to trial, only 116 led to a judgment that favoured the patient, with the median damage awarded $117,000.

More recently still, retired Justice Stephen Goudge concluded that medical malpractice cases take too long and cost taxpayers too much, with total case costs surging by up to 700 per cent, unadjusted for inflation, between 1990 and 2015.

“As medical liability costs rise, the cost of medical liability protection necessarily rises,” wrote Goudge in a 65-page report Report to Ontario Ministry of Health and Long Term Care Re: Medical Liability Review.

“This, and concerns about the length of time required for individuals to obtain compensation for injuries due to medical mistakes, suggest that changes to the medical liability aspect of the civil justice system may be needed to ensure the long-term viability of the way medical liability protection is presently provided in Ontario.”

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