Armstrong v. Royal Victoria Hospital, 2018 ONSC 2439

Charles E. Gluckstein of Gluckstein Personal Injury Lawyers and Ryan Breedon successfully represented the Plaintiff in a medical malpractice case. The Plaintiff suffered a thermal injury to her ureter during a laparoscopic colectomy. The injury caused her to lose a kidney. 


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Introduction

This decision by the Honourable Mr. Justice Mulligan provides important guidance on the standard of care when using energy-emitting medical devices, such as the LigaSure device, during laparoscopic surgeries. 

Facts

The Defendant, a general surgeon, was responsible for the colectomy portion of a proctocolectomy (surgical removal of the rectum and colon). The procedure was done laparoscopically (minimally invasive) using a LigaSure device. This device uses heat to cut and seal tissue during surgery.

The Plaintiff experienced continual pain after the surgery. It was eventually discovered that she had a blocked left ureter. The blocked ureter compromised her left kidney which was subsequently removed.

The Plaintiff argued that the left ureter had been damaged during the colectomy as a result of the thermal spread from the LigaSure device. The Plaintiff’s position was that the Defendant had unintentionally brought the jaws of the LigaSure device within 1-2mm of the ureter which was close enough to cause a thermal injury. The Defendant’s position was that he maintained adequate distance from the ureter and therefore did not breach the standard of care.

Issues

There were two issues at trial:

(a) Did the Defendant breach the standard of care expected of a general surgeon in conducting the Plaintiff’s colectomy?

(b) If the standard of care was breached, did it cause damage to the Plaintiff’s left ureter, leading to her left kidney’s subsequent removal?

Decision

(a) Standard of Care

Mr. Justice Mulligan concluded the following in regards to the standard of care:

“I am satisfied that the standard of care for a general surgeon is to identify, protect, and avoid direct contact with or close proximity to the ureter when using an energy emitting device like the LigaSure.”

Mr. Justice Mulligan stated that “close proximity” means within one or two millimeters to account for the thermal spread of the LigaSure device. Therefore, he concluded that “the standard of care is breached by touching the ureter or coming within one or two millimetres of it using the LigaSure device during the laparoscoptomy.”

(b) Breach of Standard of Care and Causation

The second issue was whether the injury to the ureter had been caused by the use of the LigaSure device within 1-2 mm of the ureter. If so, then the Defendant had breached the standard of care. Both parties relied on the expert testimony of a general surgeon and a urologist.

The Plaintiff’s experts testified that the injury was caused by the thermal spread of the LigaSure device. Since the thermal spread is limited to 1-2mm, the Defendant must have breached the standard of care.

The Defendant’s experts offered a different theory. They testified that the injury to the ureter occurred as a result of “collateral thermal damage from the LigaSure to surrounding fat in the retroperitoneum causing periarterial fibrosis and associated hydronephrosis in its mid-portion.” The Defendant’s experts maintained that this collateral thermal damage could have occurred even had the Defendant maintained a distance of four or five centimetres from the ureter, as he testified that he had.

Mr. Justice Mulligan did not accept the Defendant’s theory and concluded the following:

“I accept [the Plaintiff’s experts’] evidence that [the Defendant] came within one or two millimetres of the ureter, causing damage leading to scar tissue and eventual ureter blockage. Upon surgical investigation several weeks later, this blockage extended eight to ten centimetres along the ureter’s centre. This damage led to the ureter’s complete shutdown. The ureter was unable to transfer urine from the kidney to the bladder. As a result, [the Plaintiff’s] kidney had to be removed by a subsequent surgical procedure.”

Conclusion

Mr. Justice Mulligan was satisfied that the Defendant had breached the standard of care and caused the injury to the ureter. He found in favour of the Plaintiff. Damages had been agreed upon prior to trial and was therefore not at issue.

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