IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | McLellan v. Shirley, |
| 2015 BCSC 1930 |
Date: 20151022
Docket: S139395
Registry:
New Westminster
Between:
Amanda McLellan
Plaintiff
And
Donald Audley Shirley,
Barbara Lynn Taneda, and
Fraser Health Authority
Defendants
Before:
The Honourable Mr. Justice N. Brown
Reasons for Judgment
In
Chambers
Counsel for the Plaintiff: | T.P. Harding |
Counsel for the Defendants, D.A. Shirley and B.L. Taneda: | K.F. Douglas |
Counsel for the Defendant, Fraser Health Authority: | No Appearance |
Place and Date of Hearing: | New Westminster, B.C. April 1, 2015 |
Place and Date of Judgment: | New Westminster, B.C. October 22, 2015 |
Table of Contents
Nature of laparoscopic surgery and a
cholecystectomy
Surgical complexities and the role of
surgical assistant
Admission of Dr. Bugiss Report
Excerpts Examination for Discovery
REASONS WHY SUITABLE FOR SUMMARY
TRIAL
NATURE OF THE HEARING
[1]
The plaintiff sought damages for bodily injury she sustained on January
5, 2010 during a laparoscopic cholecystectomy performed at the Langley Memorial
Hospital by one of the defendants, Dr. Donald Audley Shirley (Dr. Shirley),
a general surgeon. For the following reasons, the defendant physician, Dr. Barbara
Lynn Taneda (Dr. Taneda), successfully applied in this summary trial to
dismiss the action brought against her by the plaintiff, Amanda McLellan.
[2]
Dr. Taneda acted as a surgical assistant during the surgery. She
did not perform the surgery and was not qualified to do so. In essence, she
operated a laparoscopic camera and handled retractors to expose the field of
operation for Dr. Shirley.
[3]
The parties relied on the following evidence:
1. Affidavit #1 of Dr. Taneda
(dated August 14, 2013);
2. Affidavit # 2 of
Dr. Taneda (dated February 17, 2015);
3. Affidavit # 2 of
L. Lazecki, a legal assistant for the defendants solicitors, sworn January 23,
2015. The purpose of the affidavit is mostly to provide certain information to
counsel for the plaintiff, and to settle certain litigation positions;
4. Affidavit #4 of
L. Lazecki, sworn February 16, 2015. Attached to which is an excerpt of
the examination for discovery of the plaintiff confirming that informed consent
was not in issue;
5. The medical
legal report of Dr. Samuel P. Bugis, MD, FRCSC, FACS, (Dr. Bugis),
dated October 2014. I found him a qualified expert in the field of endocrine
surgery, head and neck surgery, and general surgery. He is a Clinical Professor
in the Department of Surgery at the University of British Columbia. He
expressed an opinion on the standard of care expected of a surgical assistant
assisting a surgeon conducting a laparoscopic cholecystectomy and on whether Dr. Taneda
met that standard;
6. Affidavit #1 of
Rupinder Kang, a legal assistant employed by the plaintiff, dated February 13,
2015. The affidavit sets out certain information related to the litigation, the
claims and defences advanced; and verbatim extracts from the transcript of the
January 29, 2014 examination for discovery of Dr. Taneda;
7. The defendants
Notice to Admit, dated October 8, 2014 and the plaintiffs October 9, 2014
Response;
8. The defendants
October 20, 2014 Notice to Admit and the plaintiffs October 21, 2014 Response;
and
9. The pleadings.
ISSUES
[4]
The medical legal issues in this case are the standard of care
required of surgical assistants during a laparoscopic cholecystectomy and
whether the plaintiffs performance was a cause of the plaintiffs injuries.
The procedural and evidentiary issues are the suitability for summary trial,
the onus of proof; and the admissibility of Dr. Bugiss medical opinion.
I found the matter suitable for summary trial and found Dr. Bugiss
medical opinion admissible for the reasons set out further on in these reasons.
CLAIMS and POSITIONS
[5]
The essence of the negligence claimed by the plaintiff is that Dr. Shirley
improperly cut the plaintiffs right hepatic artery and her common bile duct
when he was supposed to have cut the cystic artery and cystic duct.
[6]
In the plaintiffs Amended Notice of Civil Claim, December 14, 2012, the
plaintiff details the following negligence against both Dr. Shirley and Dr. Taneda
without specific individual attribution:
25. The particulars of the negligence of the Defendants
Shirley and/or Taneda are as follows:
.a Failing to
use adequate and reasonable care, skill and/or attention in the provision of
medical care and treatment to the Plaintiff;
.b Providing
treatment and care that fell below the standard of treatment and medical care
expected of an average, prudent and diligent surgeon in all the circumstances;
.c Failing
to adequately identify the plaintiffs intra-abdominal anatomy and structures;
.d Failing to
identify and/or visualize the surgical landmarks and surgical field;
.e Failing to
appreciate the risks posed to the Plaintiff of proceeding with a laparoscopic
cholecystectomy when the Plaintiffs intra-abdominal anatomy could not be
clearly identified and the surgical landmarks and field could not be adequately
visualized;
.f Proceeding
with a laparoscopic cholecystectomy when the Plaintiffs intra-abdominal
anatomy could not be clearly identified and the surgical landmarks and field
could not be adequately visualized;
.g Failing to
proceed from a laparoscopic cholecystectomy to an open cholecystectomy in the
face of his inability to adequately identify the plaintiffs intra-abdominal
anatomy, and visualize the surgical landmarks and the surgical field such that
the Surgery could be conducted safely;
.h Failing to
recognize that he had severed the right hepatic artery and the common bile duct
and clipped two branches of the hepatic artery; and
.i
Such further and other particulars of negligence as may become known to
the Plaintiff.
[7]
The defendants deny these allegations of negligence.
[8]
The plaintiff did not allege incidents of negligence allegedly performed
by Dr. Taneda in her role as surgical assistant. From the plaintiffs
submissions, however, I gathered that the plaintiff in essence maintains Dr. Taneda
ought to have noticed and/or called out Dr. Shirleys alleged surgical
error. Further, that as a member of the surgical team, she shared
responsibility with other team members, including Dr. Shirley, for the
alleged surgical error with Dr. Shirley.
[9]
The surgical team in this case consisted of Dr. Shirley, the
surgeon; Ms. Taneda, the surgical assistant; an anaesthesiologist; a scrub
nurse; and the circulating nurse. Dr. Shirley was in charge. The plaintiff
argues Dr. Taneda was in sufficient proximity to the plaintiff that she
ought to have had in reasonable contemplation the knowledge that carelessness
on her part was likely to cause injury to the plaintiff. While that broad legal
principle is not really in question, insofar as it relates to Dr. Tanedas
role as a surgical assistant, the plaintiff has not asserted or defined any
particular act of negligence, or in what respect she failed to adhere to the
applicable professional standard of care.
[10]
In support of their liability theory the plaintiff relied solely on the
answers Dr. Taneda gave on a January 29, 2014 examination for discovery.
She referred the Court to London Drugs Ltd. v. Kuehne & Nagel
International Ltd., [1990] B.C.J. No. 755 (C.A.) [London Drugs].
This was not a medical malpractice case. On appeal, the Court considered
whether employees who cause damage through want of care in the course of their
employment are personally liable in tort for the full loss when their employer
has contractually limited the amount of their liability to the damaged party.
Apart from the refreshment afforded by the Courts extensive review of the duty
of care and the proximity principle, it does not assist the plaintiffs
position or introduce any principle that would see Dr. Taneda
axiomatically responsible for the alleged negligence of Dr. Shirley,
certainly not without any evidence she failed to adhere to the professional
standard of care expected of a surgical assistant; or that she engaged in some
action during the surgery that breached some other more general but defined
duty of care as a physician; or that she breached some broader but still clearly
defined duty of care.
[11]
Dr. Tanedas position is that the conflated standard of care
expected of her as surgical assistant with that of the surgeon. She submits the
plaintiff has not proven she failed to meet the standard of care expected of a
competent surgical assistant in similar circumstances and that she was
negligent. She has not produced any medical opinion that opines she failed to
meet the requisite standard of care, even when faced by Dr. Bugiss expert
opinion, which defines the expected standard of care and concluded Dr. Taneda
met it. Dr. Taneda further maintains the plaintiff has not discharged her
burden to prove a causal link between breach of a specific duty and an
injurious outcome resulting from it. In summary, Dr. Taneda submits the
plaintiff has failed to establish a genuine issue for trial, the result is
inevitable, and that a conventional trial involving her would serve no purpose,
rather only create unnecessary costs.
EVIDENCE
Nature of laparoscopic surgery and a
cholecystectomy
[12]
The February 15, 2015 affidavit of Dr. Shirley, and the October
2014 medical report of Dr. Bugis explain the basic anatomy and the nature
of a cholecystectomy.
i.
Laparoscopic cholecystectomy: the surgeon makes multiple small
incisions through which a laparoscopic camera and surgical instruments are
inserted to locate and remove the gallbladder.
ii.
Bile: a digestive fluid the liver produces to digest food. It
exits from the liver through two ducts; the left and right hepatic bile ducts.
These two ducts join into one duct that then connects to the intestines.
iii.
Gallbladder: an organ which is a reservoir for bile. It attaches
to the single bile duct by a duct called the cystic duct. A
portion of the single bile duct is located above the cystic duct. That
portion of the single bile duct is called the hepatic duct; the portion
of the single bile duct below the cystic duct is called the common bile
duct.
iv.
Arterial blood supply: The common hepatic artery and its
branches, the right and left hepatic arteries, supply blood to the
liver. Those arteries pass very close to the bile ducts. The gall bladders
blood supply comes through the cystic artery, a branch of the right
hepatic artery.
Surgical complexities and the role of surgical
assistant
[13]
At para. 7 of his first affidavit, Dr. Shirley explains the
complexities involved in the identification of the anatomy involved in the
surgery:
7. The intra-operative
identification of relevant anatomy during a laparoscopic or open
cholecystectomy can be complex, particularly if the patient is obese (as was
the plaintiff, Ms. McLellan) and significant inflammatory adhesions (i.e.
adherent tissue) are present (as was the case during the Surgery).
[14]
Further in his affidavit at paras. 10 – 12, Dr. Shirley
explained generally the respective roles of the members of the surgical team, including
Dr. Taneda and her specific responsibility in the surgery at issue in this
case, as follows:
10. The
successful performance of a surgery depends on a team approach in the operating
room. Individual members of the surgical team (including the surgeon, surgical
assistant, anaesthesiologist, scrub nurse, and circulating nurse) necessarily
focus on the completion of their designated roles. That is the only way an
operating room can function effectively.
11. While,
collectively, members of the surgical team may share responsibility for a
patient, each team member is responsible only for the completion of his or her
own designated job. For example, I have no involvement in any aspect of the
patients intra-operative anaesthesiology care which falls within the exclusive
domain of the attending anaesthesiologist.
12. The role of a surgical assistant
during a laparoscopic cholecystectomy is, in essence, to operate the
laparoscopic camera, to focus it on the operative field, to hold instruments,
and to retract tissue in order to provide exposure on the direction of the
surgeon. That was Dr. Tanedas role during the Surgery at the Hospital.
[15]
Dr. Shirley goes on to explain that the role of a surgical
assistant is often filled by general practitioners or semi-retired physicians
from unrelated specialties who have no knowledge of either the surgery or the
relevant anatomical structures involved in the surgery. He notes that the fact Dr. Taneda
may have attended other laparoscopic or open cholecystectomies as a surgical
assistant would not qualify her to identify or cut intra-abdominal structures
during this kind of surgery, [Para. 14].
[16]
On Dr. Tanedas role as a surgical assistant for the surgery in
this case, at paras. 15 – 19, Dr. Shirley further deposed:
15. Dr. Taneda
is a capable surgical assistant. She performed her role as surgical assistant
during the Surgery well. Nothing she did or failed to do during the Surgery
impaired my ability to perform the Surgery. Dr. Tanedas operation of the
laparoscopic camera and retraction with instruments on my direction offered me
a satisfactory view of the surgical field.
16. I would
not have expected Dr. Taneda to be able to identify the common bile duct
or the right hepatic artery during the Surgery (or any other intra-abdominal
structure) and I would not have sought her assistance in doing so. At no time
was it part of Dr. Tanedas role as surgical assistance during the Surgery
to ensure the correct arteries and/or ducts had been clipped or cut. The
identification of those structures requires an intimate understanding of
anatomy and general surgery which would extend beyond Dr. Tanedas
training, qualifications, and expertise.
17. Dr. Taneda
cut no sutures or any intra-abdominal structures during the Surgery.
18. It is
my role as the consultant surgeon to meet with the patient pre-operatively, to
explain the material risks associated with the planned surgery, and to perform
the surgery, which includes the identification and cutting of all relevant
intra-abdominal structures.
19. It is for the surgeon alone to decide if and/or when it might
be appropriate to convert a laparoscopic surgery to an open procedure.
[17]
At paras. 20 – 22 of his affidavit, Dr. Shirley refers to the
decision to abandon, for whatever reason, a laparoscopic surgery and to open,
and fully expose the field of the surgery, to full view (as necessary to
complete the surgery):
20. As the
consultant general surgeon during the Surgery, I alone made all necessary
intra-operative surgical decisions.
21. I would
not expect a surgical assistant, particularly one not trained as a general
surgeon, to monitor or oversee my completion of a laparoscopic or open
cholecystectomy, or to second-guess my intra-operative decisions. That is not
conducive to good surgery.
22. In her role as surgical
assistant operating the laparoscopic camera and instruments during the Surgery,
she was simply another pair of hands under my direction.
[18]
At para. 23 of his affidavit, Dr. Shirley explains what the
surgeon is able to expose or visualize during an open or laparoscopic
cholecystectomy:
23. During a laparoscopic or open
cholecystectomy, the right hepatic artery and the common bile duct are not
routinely exposed or visualised. It is a necessary for a surgeon to expose or
visualise the whole biliary tree (i.e. bile duct system) during an open or
laparoscopic cholecystectomy; the common bile duct and the right hepatic artery
are identified intra-operative by reference to other intra-abdominal anatomical
landmarks.
[19]
As noted, the surgeon alone decides whether it might be appropriate to
convert from a laparoscopic surgery to an open procedure.
[20]
On the question of the surgery going awry, Dr. Shirley made the
following admissions in his examination discovery 29 May 2014:
Q — did this surgery have a good outcome,
doctor? (p. 92, q. 562)
A No.
Q Did it have a bad outcome? (p. 92, q. 563)
A Yes.
Q Okay. What made it a bad outcome? (p. 92, q.
564)
A The common bile duct was inadvertently
severed and the right hepatic artery, as well —
Q Right. And when you say the duct and the
artery, you said was severed — (p. 92, q. 565)
MS. DOUGLAS: Inadvertently, he said.
Q — you severed it? (p. 92, q. 567)
A I severed it.
Q It was an error, true? (p. 103, q. 634)
A It was an error.
Q Okay. In fact, it was two errors, true? (p.
103, q. 635)
A It turned out that way.
Q Right. You actually severed her right hepatic
artery, true? (p. 103, q. 637)
A Yes.
Q And its not medically appropriate to sever
the right hepatic artery during a cholecystectomy, true? (p. 103, q. 639)
A True.
Q Okay. You also severed her common bile duct,
true? (p. 104, q. 640)
A Yes.
Q You will agree with me that you were the only
one that cut her right hepatic artery, true? (p. 214, q.1293)
A Yes.
Q And you were the only one that caused her the
injuries that flow from that, true? (p. 215, q. 1294)
A Yes.
Q You were the only one that severed her common
bile duct, true? (p. 215, q. 1295)
A Yes.
[21]
Regarding Dr. Tanedas role, Dr. Shirley testified:
Q
So tell me what, in your view, Dr. Tanedas
role was assisting you in a laparoscopic cholecystectomy. (p. 22, q. 138)
A Well, Dr. Tanedas role would be, first
of all, to follow my direction, to assist me in exposing the surgical field, to
retract tissues as necessary, under my direction, and basically facilitate the
exposure of the surgical field.
Q Okay. What do you mean by exposing the
surgical field? (p. 22, q. 139)
A By retraction as appropriate with instruments
so I can see to carry out my surgery.
Q Okay. would she actually be doing retraction
in a lap chole? (p. 23, q. 141)
A Yes.
Q Tell me what she would be retracting. (p. 23,
q. 142)
A I, for instance, would put an instrument, a
cross bar, on the gallbladder and I would give it to her to hold and put some
traction on the gallbladder, so I could see to do my dissection, so as part of
the retraction.
Q Okay. Anything to do with the camera inside
the patient? (p. 23, q. 145)
A Yes, and she would manipulate the camera also
—
Q Okay. (p. 24, q. 146)
A — for a laparoscopic cholecystectomy, yes.
Q Well, thats not exposing the field; youll
agree with me? (p. 24, q. 148)
A Anyway, she does operate the camera, yes.
Okay.
Q And whats important for you in the camera
operator, what do you need? (p. 24, q. 149)
A A steady hand and to manipulate the camera to
always provide a satisfactory view of the surgical field.
Q Whats a satisfactory view? (p. 24, q. 150)
A To keep the structures and field in — in
focus and to move the camera in and out to provide perspective as necessary.
Q What structures particularly are you looking
for in a lap chole? (p.24, q. 151)
A The gallbladder, the ductal structures, the
liver, the bowel, and any other organs that are — happen to be in the area.
Q Okay. When youre doing the lap chole and you
have an assistant moving the camera around, are you looking at the screen where
the camera is projecting? (p. 30, q. 185)
A Yes.
Q Okay. And again, for those of us who have
never done the surgery, essentially, what youre doing is youre looking up at
the screen and manipulating your instruments as you look at the screen? (p. 30,
q. 186)
A Yes.
Q And am I right in thinking that during this
surgery and typically, if she is assisting you with a lap chole, she has her
hand on the camera, I want to call it a hose, but you know what I mean, the
thing that sticks the camera in, she has got her hand physically on that? (p.
33, q. 207)
A She is holding the camera.
Q You were the person in charge of her medical
care during the surgery, true? (p. 40, q. 249)
A Yes.
Q Was there anyone superior to you in the
surgical room? (p. 40, q. 250)
A Well, we were all jointly involved in her
care in the sense that the anesthetist has a major role to play —
Q Yes (p. 40, q. 251)
A — in this, but I was responsible for her
care, so I will accept that.
Q Dr. Taneda, Ill try to be more obvious, Dr. Taneda
was more to you than a pair of hands, true? (p. 192, q. 1177)
A Im not sure I understand that.
Q Dr. Tanedas job — (p. 192, q. 1178)
A Yes.
Q — to assist you in this surgery — (p. 192,
q. 1179)
A Yes.
Q — she operated the camera? (p. 192, q. 1180)
A Yes.
Dr. Bugis
[22]
Dr. Bugis has been a General Surgeon, licensed by the College of
Physicians and Surgeons of British Columbia since 1989. He has had a clinical
faculty appointment with the Department of Surgery, at the University of
British Columbia since 1991, and is currently a Clinical Professor in the
Department of Surgery. He has been head of surgery at Royal Columbian Hospital
in New Westminster, and at St. Pauls Hospital and Providence Healthcare in
Vancouver, for five years. He has held numerous leadership positions in his
field. He has acted as a fellowship examiner for the Royal College of
Physicians and Surgeons of Canada from 2003 to 2010. With respect to surgery
involving the gastro-intestinal tract and gallbladder surgery, in his October
2014 report at p. 2, he expands as follows:
As a General Surgeon in British Columbia, I have provided
comprehensive management of emergency and non-emergency General Surgical
conditions including gallbladder and biliary-tract disease, benign and
malignant upper and lower gastro-intestinal tract disease and benign and
malignant breast diseases.
Throughout my career, there has
been particular emphasis on patients with Head and Neck and Endocrine Surgical
diseases, both benign and malignant. As that part of my practice increased to
occupy about 50% of my clinical work, I concentrated my General Surgical
practice on the common General Surgical conditions that include gallbladder
disease and hernia, in both emergency and non-emergency settings.
[23]
Dr. Bugis was provided with the pleadings, the hospital records of
Langley Memorial Hospital, Vancouver General Hospital, Dr. Shirley, and medical
imaging, ultrasounds, and the transcript of the January 29, 2014 examination
for discovery of Dr. Taneda. Counsel for Dr. Taneda provided him with
a Statement of Assumed facts. The plaintiff opposes admission of Dr. Bugiss
medical legal report on grounds that he opines on the ultimate issue.
Admission of Dr. Bugiss Report
[24]
Dr. Bugiss report is admissible. The set of basic factual
assumptions given to Dr. Bugis were not misleading and do not contradict
other accepted evidence. He was provided a copy of Dr. Tanedas
examination for discovery, which the plaintiff relied on and extensively
referred to. Dr. Bugis opined on the standard of care expected of a
surgical assistant, not on the ultimate issue of whether Dr. Taneda was
negligent. It is well within the bounds for a physician as amply qualified as Dr. Bugis
to opine on the expected standard of care and on whether the plaintiff met it.
Dr. Tanedas evidence
Excerpts Examination for Discovery
[25]
The plaintiff relied on excerpts from Dr. Tanedas examination for
discovery on 29 January 2014, as follows:
Q Okay. Is your duty to the patient less when
you are assisting than if you were the primary surgeon? (p. 24, q. 105)
MS. DOUGLAS: I dont understand that question. I
dont understand that question, counsel.
MR. HARDING: Is the word less what confuses you?
MS. DOUGLAS: I dont understand what you mean.
MR. HARDING:
Q Did you understand me, doctor? (p. 24, q. 106)
MS. DOUGLAS: If you dont you shouldnt answer him.
A I think this becomes a moral question and my
sense of duty is I dont believe ever less because I am in any given position.
I have to satisfy myself that Ive done my duty.
Q Youll agree with me that it did not matter to
you in terms of your concern for the well-being of Ms. McLellan that you
were — I dont mean this pejoratively of course, but you were just assisting
as opposed to being the primary surgeon; correct? (p. 26, q. 114)
A Correct.
Q Okay. And youll agree with me that that duty
to concern yourself with the well-being of Ms. McLellan included that you
had to closely observe the surgery; true? (p. 26, q. 115)
A Yes.
Q And you had to act as opposed to just watching
which is kind of passive, you had a duty of positive action if in you view her
safety was compromised; true? (p. 26, q. 116)
A True.
Q Okay. You had a positive duty to act if you
thought her safety was compromised even if that meant you disagreed with the
primary surgeon; true? (p. 26, q. 117)
A True.
Q Okay. So if in your view as the surgical
assistant, the surgery is progressing, and in your own assessment as a physician
with your doctor/patient relationship in all of the duty we have talked about
earlier today to the patient directly, is it your position that no matter what
happened its not your role to advise the surgeon to convert to open surgery?
(p. 58, q. 247)
A When you phrase it in that manner if I see
something I consider dangerous I will bring it to the attention of the surgeon.
Its not my role to make the decisions but I can certainly point things out if
Im unsure of them.
Q Let me try and put a clean question on the
record, doctor. Youll agree with me that as the surgical assistant part of
your role is to choose the safer option from those available to you as the
surgical assistant? (p. 59, q. 251)
A Yes.
Q Okay. Youll agree with me that one of the options
available to you as surgical assistant is to use your own judgment and advise
the surgeon if youre concerned about the patients safety; true? (p. 59, q.
252)
A True.
Q Fair enough. But as the surgical assistant,
okay, and I know you talked about being an extra set of hands, youre an extra
set of eyes, youre also an extra brain; right? (p. 68, q. 289)
A Correct.
Q Would you agree with me, doctor, that part of
your role as a surgical assistant is to use your judgment to assist both the
patient and the surgeon? (p. 69, q. 291)
A Yes.
Q Okay. And is part of the exercise of your
judgment to bring to the attention of the surgeon anything that you think he
might have missed? (p. 69, q. 292)
A Yes.
Q Okay. Is it part of your role as surgical
assistant to use your judgment to bring to the attention of the surgeon what
you think might be a mistake that he has committed? (p. 69, q. 293)
A Yes.
Q Okay. Is it part of your role as a surgical
assistant to use your judgment to bring to the attention of the surgeon a
mistake which he hasnt yet committed but it looks like hes going to? (p. 69,
q. 294)
A Yes.
Q And part of your role as surgical assistant to
Dr. Shirley was to assist him by recognizing if in your judgment, you
know, leave aside whether its Gods truth, but in your judgment, if you saw
something that you thought was wrong you would tell him; true? (p. 73, q. 313)
A True.
Q So part of that role to assist Dr. Shirley
by exercising your judgment was to be watching the monitor for anything that
looked to you to be a problem; true? (p. 74, q. 315)
A True.
Q And a problem would include if the wrong
arteries had been clipped; true: (p. 74, q. 316)
A That would be true.
Q Okay. When youre watching that screen trying
to assist Dr. Shirley to make sure everything is going well and has gone
well, you need to exercise your judgment based [on] your understanding of the
anatomy; true? (p. 78, q. 340)
A True.
Q Dr. Taneda, do you agree with me that
part of the judgment that you brought to the table for the surgery on Ms. McLellan,
was informed by your previous experience as surgical assistant in those — your
guesstimate of 40 to 50 lap-cholys? (p. 82, q. 359)
A True.
[26]
The following questions and answers from Dr. Tanedas examination
for discovery on 29 January 2014, deal mostly with Dr. Tanedas own
physical actions during the surgery:
Q And the extra hands you said during the
surgery to allow him to see what hes doing so he can proceed safely. Just tell
me what you mean by that in detail? (p.35, q. 152)
A For laparoscopic cholecystectomy?
Q Yes, maam. (p. 35, q. 153)
A Hands perhaps is perhaps more appropriate to
an open job where you are actually using your hands to retract skin and so on.
In a laparoscopic case its basically holding the camera and focusing it in the
area where he wants to work and where he needs to see.
Q So typically in a lap-choly for want of a
better term youre the camera operator? (p. 35, q. 154)
A Yes.
Q Do you have a particular purpose there or do
you just sit there and wait for him to say push more, pull back. Do you
actually do anything for yourself? (p. 40, q. 172)
MS. DOUGLAS: She answered that.
A I like to hope that as an assistant I can
anticipate the surgeons needs so that he doesnt have to be continually
telling me to adjust my focus in or out. That I can follow the surgery and be
where he needs me without being asked, given that I cant read his mind so I
dont always anticipate where hes going to be looking next and where he wants
to focus next.
Q In your role as surgical assistant in a
laparoscopic cholecystectomy tell me what exactly you do to ensure that your
patient is left in a safe condition to be discharged from the operating room?
(p. 90, q. 390)
A You do the surgery, you remove the
gallbladder, you double-check that theres no bleeding.
MS. DOUGLAS: Hes asking what you do, not what the
surgeon does. What you do.
A I assist the surgeon because this is what
hes doing is hes going to ask me to view the gallbladder on more time to make
sure theres no bleeding left behind or if the gallbladder itself has been
opened were going to look around the abdomen. Im going to move the camera so
he can look for any stones that have escaped, or any bile thats loose, and
that the gallbladder is removed in its entirety from the abdominal cavity.
Q Okay. So my question was tell me exactly what
you do as a surgical assistant to ensure the patient is safe to be discharged
from OR, and I understand your answer to be making sure theres no bleeding and
Ill be fair to you, and say anywhere? (p. 91, q. 392)
A Okay.
Q Make sure the gallbladder has been removed
intact? (p. 91, q. 393)
A Mm-hm.
Q Make sure there are no stones loose in the
cavity? (p. 91, q. 394)
A Yes.
Q Your role as physician to this patient is to
also look yourself, whether or not you move the camera without instructions
from the surgeon, but youre still using your eyes, your judgment, to look to
see if the patient is safe to be discharged from OR; true? (p. 92, q. 397)
A. True.
Affidavit evidence Dr. Taneda
[27]
As noted earlier, Dr. Taneda completed two affidavits, the first on
August 14, 2013; and the second, on February 17, 2015, which Dr. Taneda
characterized as supplementary to her August 14, 2013 affidavit. It also served
to clarify some of her responses on examination for discovery.
[28]
Dr. Tanedas August 14, 2013 affidavit is brief enough to quote
verbatim:
I, BARBARA LYNN TANEDA, physician and surgeon, of the
municipality of Langley, Province of British Columbia, MAKE OATH AND SAY AS
FOLLOWS:
1. I am a
defendant in this action, and, as such, have personal knowledge of the matters
and facts to which I hereinafter depose except where stated to be based on
information and belief in which case I believe the same to be true.
Professional Qualifications and Experience
2. I am a
physician licensed to practice medicine in the province of British Columbia as
an obstetrician and gynaecologist. Now shown to me and marked as Exhibit A to
this my affidavit is a true copy of my curriculum vitae.
3. I
graduated from medical school at the University of Toronto in 1990. Thereafter,
I completed a rotating internship at Mount Sinai Hospital in Toronto in 1991.
4. In
1995, I completed my four-year residency in obstetrics and gynaecology at the
University of Alberta and became a fellow of the Royal College of Physicians
and Surgeons in obstetrics and gynaecology.
5. From
1995 to 2004, I worked as an obstetrician gynaecologist in Edmonton, Alberta
and in Langley and Surrey, British Columbia.
6. Commencing
in 2004, I have worked as a surgical assistant at Surrey Memorial Hospital,
Langley Memorial Hospital, and the Langley Surgical Centre.
Involvement in
Plaintiffs Care
7. I was
briefly involved in Ms. McLellans care on one occasion only: namely,
January 5, 2010, in my capacity as surgical assistant to general surgeon, Dr. Donald
A. Shirley (Dr. Shirley), during his completion of the plaintiffs
laparoscopic cholecystectomy at Langley Memorial Hospital (the Surgery).
Clinical
Records
8. I
generated no records as a result of my involvement in the Surgery.
Recollection
of Events
9. I have
no memory of the plaintiff or my involvement in the Surgery.
10. The
information contained in this affidavit is based on my usual and invariable
practices and on my review of the OR report prepared by general surgeon, Dr. Shirley,
following the Surgery, a true copy of which is attached hereto and marked as Exhibit
B to this my affidavit. [not included here]
Role of
Surgical Assistant
11. My role
as surgical assistant during the Surgery involved:
(a) Operating
the laparoscopic camera;
(b) Holding
retractors to expose the surgical field;
(c) Positioning
lights;
(d) Suctioning
blood; and
(e) Cutting
sutures, as directed by general surgeon, Dr. Shirley.
12. In my
role as surgical assistant during the Surgery I:
(a) Made
no intra-operative decisions;
(b) Cut no
intra-abdominal structures; and
(c) Deferred
to and took my direction from general surgeon, Dr. Shirley, who conducted
the Surgery.
13. I had
no involvement in the plaintiffs pre-operative care.
14. I had
no involvement in the plaintiffs post-operative care.
15. I had no further involvement in
the plaintiffs care on completion of the Surgery.
[29]
Dr. Tanedas second affidavit was more expansive. At para. 4,
she concisely described her role during the surgery was to operate the
laparoscopic camera, and to hold instruments in order to retract tissue and
expose the operative field, at the direction of the surgeon, Dr. Shirley.
In essence, my job was to operate the camera and to hold steady.
[30]
At para. 5 of her affidavit, she might be involved in cutting
sutures at the direction of the involved surgeon in an open cholecystectomy
([which is] performed with an open abdominal incision)
[but] I would not be
called upon to do so in a laparoscopic cholecystectomy.
[31]
During this surgery, she did not cut any sutures or any intra-abdominal
structures (para. 6).
[32]
Beginning at paras. 7 – 11, Dr. Taneda excluded those tasks
she does not perform as a surgical assistant in a laparoscopic cholecystectomy:
7. As a
surgical assistant in a laparoscopic cholecystectomy, my role does not include:
(a) Meeting with the patient
pre-operatively;
(b) Obtaining the patients
consent to the surgery;
(c) Monitoring the patients
vital signs intra-operatively;
(d) Identifying
the common bile duct, the right hepatic artery, or any other intra-abdominal
structure;
(e) Cutting any
intra-abdominal structures;
(f) Placing
any surgical clips or assessing tire appropriateness of the surgeons placement
of such clips;
(g) Making any
intra-operative surgical decisions;
(h) Ordering or reviewing
any intra-operative investigations;
(i) Monitoring
or assessing the appropriateness of the involved surgeons intra-operative
decisions;
(j) Ensuring
the correct arteries and ducts have been clipped and/or cut;
(k) Determining
whether to convert from a laparoscopic to an open procedure; or
(l) Assessing
the patients fitness for discharge from the operating room.
8. I am
not a general surgeon. I have none of the extensive specialised training
required to become a general surgeon. I have never performed a laparoscopic or
open cholecystectomy. I have never been required to identify any
intra-abdominal structures during a laparoscopic or open cholecystectomy; I would
not trust myself to recognise any of those structures correctly or to be able
to locate any of them in a patients abdomen without the assistance of a
general surgeon.
9. I
would be unable to identify or distinguish the cystic duct from the common bile
duct or the cystic artery from the right or left hepatic arteries
intra-operatively. I do not have the intimate knowledge of intra-abdominal
anatomy required of a general surgeon to perform or oversee a laparoscopic or
open cholecystectomy.
10. I could
not reliably identify the common bile duct or the right hepatic artery, would
not know where to find either structure within a patients abdomen, and do not
know whether those structures would be routinely exposed and/or visualised
during a laparoscopic or open cholecystectomy. I am not qualified to make those
determinations and would defer to a general surgeons intimate and specialised
knowledge in all such matters.
11. As a surgical assistant during a
laparoscopic or open cholecystectomy, I necessarily rely on the consultant
general surgeon to identify intra-abdominal structures, to make all
intra-operative surgical decisions, and to perform all aspects of the surgery.
I am not qualified by virtue of my training or experience to do so.
[33]
At para. 12, she confirmed that were she to observe any obvious
problem during the surgery, she would report the concern to the involved
consultant surgeon. She further states, however, that she would be, limited in
[her] ability to do so by virtue of [her] qualifications, training and
experience. [She is] not a general surgeon, did not perform the Surgery, and
would not be qualified to identify relevant anatomy or to make intra-operative
surgical decisions in the context of a laparoscopic or open cholecystectomy.
[34]
On the subject of questioning a surgeons intra-operative
decision-making if she did not understand what the surgeon was doing or why,
she deposes at para. 13 that it would be inappropriate for her to do so
and adds, [t]he fact I have assisted at other laparoscopic and open
cholecystectomies in my capacity as a surgical assistant is no substitute for
the five years of specialised training required to become a general surgeon.
[35]
Specifically addressing her capacity to distinguish between ducts and
arteries, she deposed at para. 14 that they are all very similar in
appearance and that she could not reliably distinguish between them
intra-operatively and would require the assistance of a trained general surgeon
in order to do so. Further, she states that [i]f an anomalous duct had been
present during the Surgery, [she] would not have been able to recognise it as
such, (para. 15).
[36]
At para. 16, she denies any recollection of concerns at any time
about any aspect of the Surgery or any compromise to the patients safety
during the Surgery. [She is] confident [she] would remember those details, if
[she] had any such concerns.
[37]
The plaintiff pointed to what she saw as contradictions between Dr. Tanedas
detailing of her role as a surgical assistant in her second affidavit with
statements she made during the examination for discovery. I do not find any
contradiction between Dr. Tanedas having stated she would give no less
care to the performance of her duties as a surgical assistant than in some
other position. She stated I have to satisfy myself that I have done my duty.
She agreed her role is not merely a passive one, but involves the duty of
positive action, if she felt the plaintiffs safety had been compromised.
That very general admission is a statement one would expect any medical
practitioner say. But what constitutes positive action depends, of course, on
the situation and on the practitioners qualifications. For Dr. Taneda to
say she would bring something she thought was dangerous to the attention of the
surgeon consists with her other discovery and affidavit statements. In a
laparoscopic procedure, she holds a specialized camera and focuses it in an
area where the surgeon wants to work on where they need to see anatomical
structures. Dr. Taneda was not the surgeon and she made it clear she
deferred to the surgeon; Of course, she would point out to the surgeon a danger
she had the means, skill, and experience to notice and identify. Granting this
does not place on Dr. Taneda the mantle of the surgeons responsibilities
and standard of care, or elevate the standard of care for a surgical assistant
beyond that described by Dr. Bugis and Dr. Shirley.
[38]
Dr. Tanedas responses are mostly general and hypothetical and they
do not constitute a statement of the standard of care expected of a surgical
assistant. None of the questions put to her specify any anomalous anatomy or
medically unsafe condition present during the surgery that Dr. Taneda
could have seen, or ought to have seen, or that called on her for a reaction that
the standard of care clearly expected of a surgical assistant in such
circumstances.
[39]
In essence, Dr. Taneda confirmed that which is not really in
question, her duty as a surgical assistant to perform to a standard no less
than what is expected of a surgical assistant for a surgeon who is conducting a
laparoscopic cholecystectomy.
REASONS WHY SUITABLE FOR SUMMARY TRIAL
[40]
As stated in Ahlwat v. Green, 2014 BCSC 1865, at para. 8,
a number of factors determine the suitability of summary trial, including:
a. the
amount involved;
b. the complexity of the matter;
c. its
urgency;
d. any prejudice likely to arise by reasons of delay;
e. the
cost of taking the case forward to a conventional trial in relation to the
amount involved;
f. the
course of the proceedings;
g. the cost of the litigation and the time of the
summary trial;
h. whether
credibility is a critical factor in the determination of the dispute;
i. whether
the summary trial may create an unnecessary complexity in the resolution of the
dispute; and
j. whether the
application would result in litigating in slices.
[41]
I found no convincing reason to seriously question whether this matter
is suitable for summary trial. Any such determination must now consider the
recent Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC
7 [Hyrniak]. At para. 2, Karakatsanis J. that:
[2]
[A] culture shift is
required in order to create an environment promoting timely and affordable
access to the civil justice system. This shift entails simplifying pre-trial
procedures and moving the emphasis away from the conventional trial in favour
of proportional procedures tailored to the needs of the particular case. The
balance between procedure and access struck by our justice system must come to
reflect modern reality and recognize that new models of adjudication can be
fair and just.
[42]
If no genuine issue requires a trial, the court must grant summary
judgment, Hyrniak, (para. 47).
[43]
Complexity does not automatically render a case unsuitable for summary
disposition: Parragh v. Eagle Ridge Hospital and Health Care Centre, 2008
BSCS 1299, paras. 22 – 24. The determining principle is not whether
conflicts in the evidence exist, but whether the court is able to achieve a
just and fair result by proceeding summarily: MacMillan v. Kaiser Equipment
Ltd., 2004 BCCA 270, para. 22.
[44]
This case does not involve conflicting expert reports such that
cross-examination is necessary to parse out and weigh the testimonial
differences. The parties view differently some of the answers Dr. Taneda
gave on examination for discovery, but most of the differences are not that
telling and, in my view, do not leave the Court with insufficient evidence on
which to make necessary findings. In any case, the summary trial judge is
entitled to weigh evidence and to accept or reject it: The Bank of Nova
Scotia v. Robertson, 2001 BCCA 580, para. 11.
[45]
Separating and then determining issues such as causation or the standard
of care from other trial issues lies with the chamber judges discretion. If a
trial involving the parties still has to proceed, irrespective of a summary
judgment involving some parties and issues and not others, that does not
prevent the chambers judge from determining some matters summarily if it will
promote the orderly use of court time and effectively determine the issue: Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202
(C.A.).
[46]
In essence, If there is enough evidence for the chambers judge to find
facts necessary to make a judgment, summary trial is suitable: Barkwill v.
Parchomchuck, 2011 BCCA 207, para. 14.
[47]
Rule 1-3 introduces the dimension of proportionality, calling on the
court to conduct the proceeding in ways that are proportionate to (a) the
amount involved in the proceeding, (b) the importance of the issues in dispute,
and (c) the complexity of the proceeding. As Justice Russell stated in Boss
Power Corp. v. British Columbia, 2010 BCSC 1648, at para. 49:
The fact that a matter involves
complex facts or complex law does not mean it must proceed to full trial. Where
a summary trial can achieve the ends of justice and save the parties either or
both time and money, it is to be preferred.
[48]
In this case, I found the medical legal issues relatively
straightforward. The Court is not called on here to determine whether Dr. Shirley
was negligent or that whatever errors he allegedly made caused the plaintiff
injury. Consent to the surgery is not an issue. The Court is not confronted
with multiple volumes of controverted clinical records, consultations,
controversial lab reports, MRIs, CT scans, etc., that require
cross-examination.
[49]
In my view, the principles developed in the cases clearly affirm the
suitability of a summary trial on the case against Dr. Taneda. I see no
merit in the plaintiffs submission that a dismissal of her case against Dr. Taneda
would prejudice her case against Dr. Shirley; or that this would allow him
to back out of the litigation and leave the plaintiff remediless. A summary
trial, in the circumstances, is a fair procedure and does not prejudice the
plaintiff.
BURDEN OF PROOF
[50]
The plaintiff has the onus to prove the essential elements, particularly
with respect to the standard of care and causation. In Branco v. Sunnybrook
& Womens College Health Sciences Centre, [2003] O.J. No. 3287
(Ont. S.C.J.), at para. 8, Spence J. expands the point:
The onus of proof at trial is
on the plaintiff. In an action alleging medical malpractice, a Court may not
make findings of either breach of the standard of care or causation except on
the basis of expert opinion evidence to support those findings. There is no
genuine issue for trial in the absence of an expert medical report establishing
a breach of the standard of care and causation. Where a plaintiff fails to
obtain any supportive expert reports, the Court will draw an inference that the
plaintiff has been unable to obtain any expert opinion supportive of the
allegations of negligence. [Authorities omitted.]
[51]
A physicians actions are based on the standard of an ordinary average
physician under similar circumstances: ter Neuzen v. Korn, [1995] 3
S.C.R. 674 [Korn], at paras. 33 – 34.
[52]
If a doctor acted in conformity with recognized medical practice within
the profession, it is generally accepted they will not be found negligent: Korn,
at para. 38. While the fact a professional followed the practice of their
peers may strongly evidence reasonable and diligent conduct, it is not decisive
if the practice itself does not accord with general standards of liability,
i.e. the duty to act in a reasonable manner considering the circumstances: Korn,
at para. 42.
[53]
As for the nature of the evidence the court must have before it, Justice
Sopinka explained at para. 38:
The courts do not have
jurisdiction to settle scientific disputes or to choose among divergent
opinions of physicians on certain subjects. They may only make a finding of
fault where a violation of universally accepted rules of medicine has occurred.
The courts should not involve themselves in controversial questions of
assessment having to do with diagnosis or the treatment of preference.
[54]
In effect, the plaintiff has the onus to establish the accepted standard
of care and that she failed to meet it, supported by the evidence of an
appropriately qualified expert. A record empty of evidence on the relevant
standard of care and of a failure to meet it, effectively non-suits the
plaintiff, even where the defendant has not filed contrary evidence or opinion.
In other words, even without Dr. Bugiss report, without evidence of the
standard care and a defined breach of it by Dr. Taneda, the plaintiff
should be non-suited, Mikhail v. Northern Health Authority (Prince George
Regional Hospital), 2010 BCSC 1817, at para. 108; Eamer v. Zarzour
(29 January 2007), Vancouver Registry No. L042219 (B.C.S.C.), at paras. 12
– 13; Steeves v. Air Canada, [1996] B.C.J. 2879 (S.C.), at
paras.17 – 18.
[55]
It goes almost without saying that in conjunction with proof of an
applicable standard of care and breach of it, the plaintiff must also prove
that but for the resulting negligence she would not have suffered the injuries
alleged: Zeledon v. Kelowna General Hospital, [1996] B.C.J. 2868 (S.C.),
at para. 46.
CONCLUSION
[56]
I find the plaintiff has not proved Dr. Tanedas actions did not
adhere to the expected standard of care. The plaintiff did not establish any
link between Dr. Tanedas participation in the surgery as a surgical
assistant physician, the surgerys unintended outcome, and the alleged
injuries. Standing alone, the lack of any medical opinion to establish the
applicable standard of care and of evidence Dr. Taneda failed to adhere to
it, is sufficient grounds to justify dismissal of the plaintiffs action. In
addition to the cases already cited, see also: Pushee (Guardian ad litem of)
v. Roland, 2003 BCSC 655, at para. 16; Hampton v. Marshall,
[1996] B.C.J. No. 1948 (S.C.), at paras. 15 – 18.
[57]
As for implicating Dr. Taneda in the surgerys outcome based on the
proximity principle and because she served as part of a team, I note this line
of reasoning would also automatically implicate the anaesthesiologist and
nurses. The conclusions Dohm J., as he was at that time, came to in Laidlaw
(next friend of) v. Lions Gate Hospital, [1969] B.C.J. No. 230
(S.C.) are apposite here. In that case, the 44-year-old female plaintiff was
admitted to Lions Gate Hospital for a cystectomy operation (excision of the
gallbladder). Among those present in the operating room were Dr. Osborne, Dr. Coupland,
and Dr. Hiddleston, the anaesthesiologist. The surgery went well, but when
she was in the post-anaesthesia recovery room, the plaintiff suffered a serious
permanent injury. At para. 6, Justice Dohm dismissed the case against two
of the physicians, stating:
[6] I digress to state
that at the conclusion of this trial and after hearing the submissions of
counsel for the plaintiffs and without calling upon Mr. Collier I
dismissed this action as against the general physician Dr. Coupland and
the surgeon Dr. Osborne, there being not a tittle of evidence of
negligence against either one. The plaintiffs’ case against these two doctors
was based on their both being on the operating room team, on Dr. Osborne
being the doctor who admitted the patient and on the allegation that Dr. Coupland
"should have foreseen that predictable and preventable disorders do not occur".
None of these "scatter-gun" arguments had any merit in my opinion.
More specific arguments were directed by counsel for the plaintiffs against the
anaesthetist Dr. Hiddleston. I reserved judgment on the case against the
hospital and Dr. Hiddleston.
[58]
I do not see Dr. Tanedas participation in the surgery as part of
the surgical team renders her liable on any basis for the surgerys adverse
outcome. I find no evidence of any negligence on her part.
[59]
I note Dr. Shirleys testimony on examination for discovery that he
alone was responsible for the cutting of the right hepatic artery and common
bile duct. As we saw earlier, he agreed on examination for discovery that he
was the only one that severed her common bile duct and right hepatic artery;
and he in no way implicated Dr. Taneda in those inadvertent errors.
[60]
In summary, I find Dr. Taneda was not negligent, either as a physician
or as surgical assistant. Her participation in the surgery in no way
contributed to its harmful outcome.
[61]
The plaintiffs case against Dr. Taneda is dismissed. She is
entitled to her costs at Scale B.
N.
Brown J.