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Monday Morning Case Bites for June 21, 2021

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Steven Graham

Harling v Lauf, 2021 ABQB 235
Medical Malpractise | Standard of Care | Battery and Consent | Negligence

The litigation representative of a deceased Plaintiff commenced an action against a physician and the University of Alberta Hospital alleging medical malpractise in the death of his wife (for ease of reference the deceased will be referred to as the Plaintiff). The Plaintiff had advanced liver disease and required a transplant. She had had previous radiological procedures performed and required another which was the subject of this litigation. Following the procedure to insert a bile drainage tube, the Plaintiff was discharged home, but returned the following day complaining of discomfort. She was diagnosed with sepsis and died in hospital. It was alleged in this action that the Defendants were negligent in failing to use antibiotics during the procedure, failing to recognize symptoms of a known risk of the procedure, and discharging the Plaintiff prematurely following the procedure. The Plaintiff further claimed that the hospital had not granted proper privileges to the physician who performed the surgery, thereby committing battery and voiding the consent provided by the Plaintiff.

The Court first addressed the Plaintiff’s claim of battery by examining the apparatus through which radiological services are administered in Alberta. The Plaintiff called an expert who outlined differences in which the hospitals in Edmonton grant privilege to their physicians to perform certain procedures as opposed to the hospitals in Calgary. The argument can be boiled down to the fact that the physician in this case who performed the surgery did not specifically apply for permission to perform that specific procedure; rather his privilege to perform procedures was granted by virtue of his experience in the field. The Court noted that while the Plaintiff’s expert preferred the Calgary hospital regime, in which physicians obtain privilege by application for specific procedures, that did not mean that the Plaintiff’s consent for the Defendant physician to perform the surgery was vitiated because he did not obtain privilege in the manner that a Calgary physician would have to. The Court concluded the Defendant physician was authorized by AHS to perform the procedure and had consent from the Plaintiff to do so.

The Court then considered the Plaintiff’s argument in negligence and whether the standard of care had been breached and whether such a breach was the cause of the Plaintiff’s injuries.

The issue was narrow, as the parties agreed that the replacement bile tube for the Plaintiff’s liver was properly placed and the surgery was uneventful. The Plaintiff was moved to a recovery room and monitored for four hours. She was seen by the Defendant physician, and discharged home. Upon the Plaintiff’s return to the hospital the next day, imaging revealed that the replacement tube had shifted, resulting in sepsis in the Plaintiff’s abdomen.

There was conflicting expert evidence as to whether or not the Defendant physician should have used antibiotics in the replacement procedure. The Defendant physician’s practice was to use antibiotics on the initial placement of a tube, but since subsequent procedures used the same orifice, antibiotics were not used. After considering the medical literature and evidence provided by the experts, the Court concluded there was no consensus amongst radiologists as to the need to use prophylactic antibiotics in biliary tube replacements, and as such did not find that on a balance of probabilities that the standard of care required prophylactic antibiotics for every biliary tube replacement procedure:

[118]      The plaintiff has not persuaded me on a balance of probabilities that the use of prophylactic antibiotics for an interventional radiology biliary tube replacement procedure constitutes a standard of care for radiologists and therefore that not using them falls below that standard.

[119]      Nor am I persuaded by the plaintiffs that the standard of care, or the lack thereof, itself may be found negligent by this trier of fact as was argued in ter Neuzen v Korn1995 CanLII 72 (SCC), [1995] 3 SCR 674.   During this trial, I listened to and read the evidence of some very intelligent and experienced physicians in the areas of infectious diseases and radiology.  They are unable to agree on the standard, but all have their reasons, which involve a legitimate assessment of the risk of the non-use of antibiotics in one narrow situation versus the risk that they may be creating down the road by using them in that narrow situation.  This is not a situation where a lay observer can determine that the standard was inherently negligent:  Nattras v Weber2010 ABCA 64 at para 40.

The Court then considered the standard of care regarding the Plaintiff’s discharge. The Plaintiff argued that her expressing symptoms of pain and vital signs should have been taken as signs to the Defendant physician that something was wrong, and that he should have more thoroughly diagnosed those symptoms before discharging her.

After examining the Plaintiff’s medical history, including her subjective complaints of pain following previous procedures of the same kind, the Court found that complaints of pain following the procedures were not out of the ordinary, and would not have been something that a reasonable radiologist would have taken to perform further diagnostics than those which were performed:

[133]      And from the nursing notes for a number of previous procedures and other hospital visits, it does not appear that the pain of which Ms. Harling complained was out of the ordinary.  She was in the advanced stages of liver failure, and abdominal pain would be inevitable:  Dr. Cattrall, Expert Report, Exhibit 12, para 56.

[134]      What is clear from the evidence is that Ms. Harling complained of pain after the procedure, and while that was not unique to this procedure, the witnesses found common ground in determining that that can be one symptom of sepsis.  Other symptoms described by Dr. Wuerz are:

  • low blood pressure, which was not evident on her discharge but was after assessment in emergency the following day;
  • high respiration rate (though a minor sign), which was not evident on her discharge but was noted after assessment in emergency the following day;
  • elevated pulse, which was not evident on her discharge but was noted on her arrival in emergency.
  • higher or lower temperature than usual, which was not evident on her discharge nor in emergency when she first arrived.

[135]      The bulk of the symptoms that may cause further investigation into whether the pain was the result of sepsis did not present until Ms. Harling attended at the emergency department the following morning.

[136]      I am unable to conclude that her complaints of pain after this last procedure would have been a signal to a reasonable radiologist that a procedure which appeared to be without incident was giving rise to an infection which would lead to sepsis, such that investigation beyond which Dr. Lauf performed was required.

The Court concluded that the Plaintiff had not proven the Defendant physician was negligent in either failing to use antibiotics or discharging the Plaintiff when he did. The Court then went on to consider causation, in the event the standard of care did require prophylactic antibiotics.

The Court noted that even the Plaintiff’s expert could not conclusively say that using prophylactic antibiotics would have prevented the Plaintiff’s injury:

[143]      In his expert report Dr. Chow states:

Although one could not be 100% certain, preemptive administration of broad-spectrum antibiotics prior to and during her biliary tube exchange procedure might have mitigated the extent of injury and perhaps averted the onset of septic shock and subsequent complications of intraabdominal sepsis and eventual death. (Exhibit 7, p 6)

[144]      The use of terms such as “might have mitigated” and “perhaps averted” do not come close to the standard necessary to prove causation.

The Court referred to the Defendants’ experts’ opinions that prophylactic antibiotics would not have been effective against sepsis, in any event:

[146]      In his expert report, Dr. Wuertz opines:

A single dose of prophylactic antibiotic, whether 1 gram of Cefazolin or otherwise, given at the time of the PTC tube exchange procedure would not have been sufficient to prevent sepsis from the continuing bile leak and would have had no effect on the abscess, which would require effective surgical correction of the drainage and prolonged antimicrobial therapy. (Exh 15, para 20)

[147]      A third expert, Dr. Cattrall, surgeon and Director, Living-donor Liver Transplant Program, University Health Network in Toronto, testified as well.  He is not a radiologist.  He was called as an expert in liver transplantation and retransplantation and the use of antibiotics.  While admittedly not an infectious disease specialist, he testified that he is a specialist on infection within the liver, that transplantation and infectious diseases go together, and that in the early days of transplantation, “we did it all”.  He assisted Dr. Kneteman in the first fifteen or so liver transplants in Edmonton in about 1990 and has done 1000 to 1500 liver transplants since. One of his current appointments is as Senior Scientist, Toronto General Research Institute with a focus on immunology.  Given his credentials, Ms. Harling’s early liver transplant, the fact that she was being looked after by a team of liver transplant specialists in Edmonton,  and the fact that that her treatment required biliary duct interventions, I give considerable weight to Dr. Cattrall’s thoughts on the use of antibiotics during tube exchanges.

[148]      His conclusions are summarized in his expert report (Exhibit 12):

Para 59                        Despite the guidelines regarding the use of prophylactic antibiotics for percutaneous biliary drainage tube exchanges (which were not released in 2010 until after the tube exchange performed by Dr. Lauf), the value of antibiotics in this setting is controversial and many physicians who perform biliary tube exchanges do not use prophylactic antibiotics.  The biliary system is usually colonized with multiple bacterial species, many of which are resistant to commonly used antibiotics.  As a result, attempting to choose an antibiotic that will cover everything is virtually impossible.  In Ms. Harling’s case, the infection was, as expected, polymicrobial (E.coli, Klebsiella, Clostridium, and Enterococcus). Ancef[6] as a prophylactic antibiotic would not cover all these organisms.

Para 60            In my opinion, the infection suffered by Ms. Harling was not caused by or the result of the transfer of bacteria from the tube….The infection and septic shock caused by the bile leak would not have been prevented by the administration of a prophylactic antibiotic prior to the tube exchange.

[149]      Dr. Cattrall acknowledges that while there is a possibility that an infection may be caused by bacteria transfer during the tube exchange, it is a “virtual certainty that a serious infection will result from an uncontrolled bile and enteric leak in the abdomen as Ms. Harling suffered in this case” (para 60, emphasis added).

The Court finally considered whether an allegedly early discharge lead to the Plaintiff’s death. The Plaintiff’s argument was that there must have been a puncture caused by the procedure, which lead to infection causing sepsis, and that since these were known risks of the procedure, they should have been recognized and diagnosed earlier than they were.

After further examination of expert opinion, the Court accepted the evidence from the emergency physician who operated on the Plaintiff that as soon as the bile tube had shifted, it would not have mattered whether the Plaintiff was still in the hospital:

[157]      Perhaps Dr. Bigam summed it up best in his testimony.  He was told to assume that the biliary tube replaced on August 6 had shifted and caused a bile leak before her discharge from hospital that day.  He was then asked whether, if she had been kept in the hospital longer, the course of events would have been any different.  He answered in the negative:  her fate was sealed in that moment, and antibiotics administered during the process would not have made a difference.

[158]      The shifting of the tube was not due to Dr. Lauf’s negligent placement of the new tube:  the fluoroscopic images before and after prove that.  Even if he or someone else had diagnosed or predicted a shift in the tube or a puncture caused by its replacement and admitted Ms. Harling to the hospital immediately, as opposed to the following day, the ultimate result would have been the same due to the complexity of Ms. Harling’s underlying conditions.  I cannot conclude that anything that Dr. Lauf or the hospital did or did not do caused Ms. Harling’s death.

As a result of the above findings, the Plaintiff’s case was dismissed.