Supreme Court of Canada
Ostrowski v. Lotto, [1973] S.C.R. 220
Date: 1972-10-18
Jan Ostrowski and Slawomira Ostrowski (Plaintiffs) Appellants;
and
Dr. Wallace N. Lotto (Defendant) Respondent.
1972: March 28, April 26, 27; 1972: October 18.
Present: Martland, Judson, Ritchie, Hall and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Physicians and surgeons—McMurray osteotomy—Patient seeking to attribute disabilities to negligence of surgeon—No want of reasonable care and skill on part of surgeon—No such lack in surgeon’s interpretation of X-rays or in post-operative treatment.
The respondent, the chief of orthopaedic services at the Toronto Western Hospital, on October 1, 1963, performed an operation, known as a McMurray osteotomy, on the appellant’s left leg. The operation was made necessary by the constant pain being suffered by the appellant as a result of the deterioration of her hip occasioned by the heavy work which she had undertaken in the years following a bone fracture in 1954 and a subsequent operation performed by the respondent’s predecessor. After the operation the appellant remained in the hospital until January 1964, when she was moved to a convalescent hospital. She remained there for two months and was discharged on March 9th.
In a report made before the appellant was moved to the convalescent hospital, the respondent “found it difficult to be sure” from the X-rays and radiologists’ reports then available exactly what the situation was with respect to union developing at the osteotomy site and he contemplated the possibility of non-union and a further operation. Following the appellant’s discharge, the respondent reported that “there is some external rotation of the left lower extremity and there is approximately three-quarters of an inch shortening of the left lower extremity.” He recommended that the patient should “go home and mobilize herself” for two or three
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months when the case should be reviewed with further X-rays so that he could form a final opinion.
The appellant, however, ignored the respondent’s instructions so that he never had an opportunity to make a final assessment of her condition. She consulted a family physician who referred her to a radiologist in New York where further X-rays were taken and the case was further referred to an orthopaedic specialist. The New York consultations were held about a month and a half after the appellant’s discharge from the convalescent hospital. The orthopaedic specialist found that, at that time, the left leg was approximately two inches short, had external rotation of 45° and that the bone had failed to unite at the site of the operations.
In an action for damages, the respondent was found by the trial judge to have been negligent in performing the operation and in failing to accord the appellant the requisite post‑operative treatment. The appellant was awarded damages in the amount of $7,500. On appeal to the Court of Appeal, the judgment at trial was set aside. On appeal to this Court, the appellant sought to have the finding at trial restored and the damage award increased so as to compensate her for the deterioration in her nervous condition which she attributed to the suffering that she underwent as a result of the operation and subsequent treatment.
Held: The appeal should be dismissed.
The medical opinion as a whole clearly established that there was no want of reasonable care and skill in the performance of the operation, and the Court was satisfied on the evidence that there was no such lack in the respondent’s interpretation of the X-rays or in the post-operative treatment.
Wilson v. Swanson, [1956] S.C.R. 804, referred to.
APPEAL from a judgment of the Court of Appeal for Ontario, allowing an appeal from a judgment of Keith J. Appeal dismissed.
J.P. Nelligan, Q.C., A. Linden and C. Callan-Jones, for the plaintiff, appellant.
D.K. Laidlaw, Q.C., for the defendant, respondent.
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The judgment of the Court was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of Ontario setting aside the judgment rendered at trial by Mr. Justice Keith whereby he found the respondent to have been negligent in performing an operation, known as a McMurray osteotomy, on the appellant’s left leg just below the hip joint on October 1, 1963, and in failing to accord her the requisite post-operative treatment. Mr. Justice Keith had awarded the appellant damages in the amount of $7,500.
In this appeal the appellant seeks to have the finding at trial restored and the damage award increased so as to compensate her for the deterioration in her nervous condition which she attributes to the suffering that she underwent as a result of the operation and subsequent treatment.
The appellant, who was fifty-eight at the time of the operation complained of, had emigrated with her husband to Canada in 1947 where they acquired a property near Huntsville, Ontario, which they logged, improved and built upon and on which, by 1963, they were operating a tourist resort. The appellant appears to have taken part in the heavy work involved in clearing the land and in December 1952, while engaged in logging operations, she dislocated her hip and fractured the acetabulum. She was admitted to the Toronto Western Hospital on December 13th, where an operation was performed on her hip by Dr. A.W.M. White who was then the chief of the orthopaedic services at that hospital. The operation disclosed that:
The posterior aspect of the hip joint capsule had been badly lacerated and a large fragment…had been broken off the posterior lip of the acetabulum; and smaller fragments had also been broken off.
The nature of the operation performed by Dr. White is best described in the words of his own report made to the Workmen’s Compensation Board on the same day that he performed it. He there said:
The loose fragments were removed and the two impacted fragments were also removed. The disloca-
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tion was reduced, and the large fragment still attached to the capsule was replaced in what seemed to be its normal position and fixed there by one screwnail. It seemed quite stable following this fixation. The incision was then closed and the left limb immobilized on a Thomas splint with the hip in abduction.
This operation was not effective to reduce the severe pain and in 1954 Dr. White removed the screwnail but the appellant thereafter continued to work vigorously at the tourist resort with resultant periodic attacks of severe pain in her hip and legs. These attacks usually lasted about two weeks, but sometime in 1962 the pain became continuous and progressively worse and it was under these circumstances that the Workmen’s Compensation Board referred the appellant to the respondent for his opinion on July 2, 1963.
The respondent, who succeeded Dr. A.W.M. White as chief of orthopaedic services at the Toronto Western Hospital, is a highly reputable and distinguished orthopaedic surgeon who is an assistant professor of surgery at the University of Toronto, chairman of the medical advisory board of the Rehabilitation Foundation of the Disabled, a member of the board of governors of Hillcrest Convalescent Hospital and a special consultant to the Workmen’s Compensation Board.
The report made by the respondent to the Workmen’s Compensation Board after having seen the appellant on July 2, 1963, read, in part, as follows:
She describes the pain at night that keeps her awake as a severe toothache like pain going from the hip and radiating down the leg, to below the knee. She has sharp discomfort on movement, particularly posteriorly and she noticed decreased movement of her hip in that she had more difficulty in getting her shoe and stocking on on the left side and she feels that the hip is weak and is unable to actively cross her leg over her right. At times the left hip will collapse under her and tend to make her fall. Prior to last summer she was able to get her shoe and stockings on but with a little difficulty…
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This woman has an osteoarthritis secondary to her fracture dislocation of the hip and she is having sufficient pain that I think surgical treatment is indicated. I would prefer to leave her with a movable hip… I think there is considerable damage to the acetabulum itself and I would think the procedure most likely to give the best result for the longest time, would be a MacMurray type Osteotomy.
...if the Board are in agreement we will admit her to the Toronto Western Hospital at the end of September for the operative procedure described above.
The medical details of the McMurray operation which was performed by the respondent on the appellant’s left hip on October 1, 1963, are fully described and discussed in the reasons for judgment at trial and in the Court of Appeal, but for the purposes of this appeal I only find it necessary to consider the evidence having a direct bearing on the origins of the disabilities which the appellant seeks to attribute to the negligence of Dr. Lotto.
As I have indicated, the operation was made necessary by the constant pain being suffered by the appellant as a result of the deterioration of her hip occasioned by the heavy work which she had undertaken in the years following the bone fracture in 1954 and subsequent operation by Dr. White.
The description of the operation contained in the respondent’s report of October 3, 1963, reads in part, as follows:
The shaft of the femur was then displaced inwards and was held with a blade plate in satisfactory position. A portable X-ray was taken at the time of operation of the hip. The lower shaft of the femur was slightly abducted at the osteotomy site. The incision was closed in layers and the patient returned lo her bed in good condition.
I think she will be three or four months before this osteotomy has healed and I think she should have a considerable reduction in the amount of pain from this arthritic joint.
After the operation the appellant remained in the Toronto Western Hospital, where she proved a most difficult and complaining patient, until
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January 1964, when she was moved to the Hillcrest Convalescent Hospital. Once again I find the most satisfactory evidence of her condition during the ensuing months to be contained in the reports made by the respondent to the Workmen’s Compensation Board. Before she was moved to the convalescent hospital he reported, in part, as follows:
This woman’s post-operative course has been fairly painful. She has had a great many worries which have aggravated her and she has been a most difficult patient for the nurses and physiotherapists to manage. At the present time she does have some discomfort in her hip. The exact amount is hard to be sure of. She does seem to be more settled and less agitated about things going on. X-rays show the displacement osteotomy has remained in good position. One wonders whether there is a delayed union developing at the osteotomy site. However it is difficult to be sure of this... It is possible that if there truly is a non-union or delayed union at the osteotomy site we may well need to operate on her again. In view of her generalized agitation and difficulty in adjusting to the hospital situation I dread this eventuality if it should occur.
The italics are my own.
The appellant remained in the convalescent hospital for two months and after her discharge on March 9th, the respondent made the following report:
This woman is at Hillcrest Convalescent Hospital. I expect within the next day or so she will be going home. She is commencing weight-bearing and really I believe is having less and less discomfort from her left hip. There is some external rotation of the left lower extremity and there is approximately three-quarters of an inch shortening of the left lower extremity.
This woman has been exceedingly difficult to manage. She is terribly upset about the possibility of those deformities and feels she will be unable to do any form of work at all with three-quarters of an inch shortening even though her pain I think is diminishing to the point where she has to admit this is true. She has thus far refused to accept the lift for her left shoe which I think would make things considerably easier for her and she is having some discomfort in her right hip and in her lower back. For many
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years she has had discomfort in her feet in wearing ordinary shoes and apparently cannot stand the pressure of the uppers. I would think she should be allowed to go home and mobilize herself with two canes and gradually increase her activities over the next two or three months. I think she will have to be reviewed at that time with X-rays of her hip and examination and an assessment made as to what her status is.
I have quoted at such length from the respondent’s reports to the Workmen’s Compensation Board because I accept them as constituting an assessment of the appellant’s condition before, during and after the operation, made by a conscientious and highly qualified orthopaedic surgeon in the discharge of his function as a special consultant to the Board. These reports reflect the best opinion of an orthopaedic specialist as to the appellant’s condition while she was under his care. It is clear that when she was released Dr. Lotto envisaged the possibility of non-union and dreaded the further possibility of it being necessary for this very disturbed and difficult patient having to undergo a further operation. At the time of her discharge it was clearly his opinion that the best course for the appellant to follow was to gradually increase her activities over the next two or three months and to then return for further X-rays to enable him to reassess her status. This was undoubtedly an opinion honestly held by an expert in the orthopaedic field and it would require the strongest possible evidence to satisfy me that he was wrong much less that he was negligent.
The appellant, who now complains of negligence in her post-operative care, elected to ignore the respondent’s instructions so that he never had an opportunity to make a final assessment of her condition. She consulted her family physician who referred her to a radiologist in New York where further X-rays were taken and the case was further referred to Dr. McLaughlin, an orthopaedic specialist who was obviously regarded by the appellant’s advisors as a leading authority in his field. The New York consultations were held in late April, 1964, about a month and a half after the appellant’s discharge from the convalescent hospital, and the McLaughlin opinion is strongly relied on by the appellant as showing
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that, at that time, the left leg was approximately two inches short, had external rotation of about 45° and that the bone had failed to unite at the site of the operations. Dr. Lotto, who had taken measurements himself, testified that the leg shortage was ¾ of an inch after the operation and the external rotation was 15° when the appellant was discharged from Hillcrest. The respondent gave it as his opinion that the additional shortening and external rotation could, medically speaking, have occurred after the patient left his care. I cannot believe that the respondent would have reported a ¾ of an inch shortening, as he did to the Workmen’s Compensation Board on March 11th, without having measured the leg, nor can I accept the suggestion that a man of his competence was so inept as to make a mistake of 1¼ inches in his measurement. I accordingly accept the respondent’s opinion that the additional shortening did in fact occur in the month and a half after he last examined the appellant.
Although Dr. McLaughlin gave no evidence, his written opinion was entered as an exhibit and was accepted by the appellant and her advisers. This opinion is, in my view, particularly significant as containing an assessment of the case by a recognized orthopaedic specialist whose conclusions in many respects appear to me to coincide with those of the respondent. His comments on the operation as disclosed by the X-rays taken in New York are contained in the following paragraphs:
This poor lady is really in need of help. As far as I can see, the operation was properly conceived and the osteotomy placed in excellent position. I have never before seen a McMurray osteotomy that went on to a non-union such as this one did, and I believe that this complication is probably the crux of her troubles. She is quite upset about the external rotation of her leg and the shortening, which she did not expect, but I feel quite sure that if she can be given a comfortable and stable limb, these problems will become insignificant.
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It is possible that the loose internal fixation is contributing to her pain. I would think that further operation is warranted unless improvement takes place, and to me the most logical approach would be an attempt to obtain bony union across the osteotomy site. Whether or not the osteotomy should be taken down and the rotation corrected must, I think, await the findings at operation. I have suggested to her that she return and ask Dr. White for his opinion about this problem. She has great faith in Dr. White and I can assure you that he is one of the most competent orthopedists in Canada.
In response to your four questions: I believe she should do as much walking as is tolerable in order to keep her muscles from wasting. Physical therapy will do nothing except temporarily soothe her symptoms, which can be accomplished equally well by gentle heat applied at home. I think the question of further operation should await Dr. White’s opinion; and it would seem to me that she would be much better off having it done at home. Certainly the surgeons in Toronto could do as much for her as any one down here.
It is to be noted that Dr. McLaughlin considered “the operation was properly conceived and the osteotomy placed in excellent position” and that he had “never before seen a McMurray osteotomy that went on to a non-union such as this one did”. This appears to me to constitute the strongest kind of evidence negativing any negligence by the respondent in performing the operation.
I do not think that the opinion of Dr. McLaughlin as to non-union which he formed on the examination of X-rays taken about a month and a half after the appellant’s discharge from the convalescent hospital and his recommendation that “further operation is warranted unless improvement takes place” in any way conflict with the opinion expressed by Dr. Lotto in his reports made after the operation and on the patient’s discharge, at which time he “found it difficult to be sure” from the X-rays and radiologists’ reports then available exactly what the situation was with respect to union developing and he clearly contemplated the possibility of non-union and a further operation. He recommended that the the patient should “go home and mobilize herself”
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for two or three months when the case should be reviewed with further X-rays so that he could form a final opinion. Dr. McLaughlin, having the benefit; of the new X-rays, concluded that nonunion had been established, but even he did not exclude the possibility that improvement might take place which would make a further operation unnecessary, and pending a further opinion being taken from Dr. White, he recommended that the appellant should “do as much walking as is tolerable”.
Dr. Lobb, a radiologist, gave evidence on behalf of the appellant. He was consulted in preparation for trial for the purpose of giving his opinion as to the proper interpretation of the X-rays, taken before the appellant’s discharge, which he had never seen before. His evidence was to the effect that the early X-rays yielded plain indication within a few weeks of the operation that nonunion was established. This opinion was contrary to the interpretation of the X-rays made by six radiologists of acknowledged competence who had read the plates while the appellant was hospitalized and upon whose reports the respondent relied as he was entitled to do. Without casting any reflection on Dr. Lobb’s professional capacity, I am nevertheless satisfied that the respondent was fully justified in acting on the reports which he received from the radiologists who advised him.
In attributing negligence to the respondent, Mr. Justice Keith made the following finding:
Taking all of the evidence as a whole, I am forced to the conclusion that Dr. Lotto ought to have known, if he did not, that when he authorized Mrs. Ostrowski to be discharged from hospital on March 9, 1964, that the bone that he had severed would only unite as a result of a further operation, and that non-union had been established.
This conclusion appears to me to constitute a direct challenge to the opinion of a highly qualified orthopaedic specialist based on the reports of radiologists of acknowledged ability, and with the greatest respect I am unable to find that it is supported by the evidence.
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Mr. Justice Keith’s opinion as to the respondent’s negligence was also based on the following findings:
(1) I find as a fact that, regardless of the post-operative treatment employed by Dr. Lotto, which may well have been consistent with accepted standards, he in fact did shorten Mrs. Ostrowski’s leg appreciably and possibly by as much as one and a half inches and possibly more and that it could not be restored to anything approaching its original length…
(2) I further find that Dr. Lotto externally rotated Mrs. Ostrowski’s leg 45 degrees and that had union been achieved her shortened leg and outwardly splayed foot and leg would have constituted intolerable deformities which would have had to be corrected.
As to the first of these findings, it is to be noted that the learned trial judge accepted, as in my opinion he was bound to do having regard to the evidence, the fact that Dr. Lotto’s treatment “may well have been consistent with accepted standards”, and even if the evidence went no further than this, it could hardly be accepted as discharging the burden of proving negligent treatment which the appellant assumed under the pleadings. The second finding as to the intolerable condition in which the appellant would have been left if union had occurred after the operation, is based on the condition of the limb a month and a half after discharge when it was examined in New York, and while I have great respect for the care and industry displayed by the learned trial judge in his lengthy review of the evidence, I am nevertheless of opinion that his firm prognosis as to what the result would have been if union had occurred must rest in great degree upon conjecture as opposed to inference from proved fact, and I cannot accept it as a basis for concluding that the respondent was negligent.
As to the standard of care required of the respondent under the circumstances, I refer to the reasons for judgment of Rand J., speaking on behalf of himself and Nolan J., in Wilson v. Swanson, where he adopted what was said in the
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judgment of the Superior Court of New Hampshire in Leighton v. Sargent:
...following the general principles on the professional undertaking enunciated by Tindal C.J. in Lanphier v. Phipos, (1838), 8 C. & P. 475, 173 E.R. 581,…
The passage which was adopted read as follows:
To charge a physician or surgeon with damages, on the ground of unskillful or negligent treatment of his patient’s case, it is never enough to show that he has not treated his patient in that mode, nor used those measures, which in the opinion of others, even medical men, the case required; because such evidence tends to prove errors of judgment, for which the defendant is not responsible, as much as the want of reasonable care and skill, for which he may be responsible.
As I have indicated, I think that the medical opinion as a whole, and particularly that of Dr. McLaughlin upon whose evidence appellant’s counsel relied, clearly establishes that there was no want of reasonable care and skill in the performance of the operation, and I am satisfied on the evidence as a whole that there was no such lack in the respondent’s interpretation of the X-rays or in the post-operative treatment. In light of this conclusion I do not find it necessary to consider the submission so fully argued before us that the appellant’s damages should be increased so as to compensate her for the deterioration in her nervous condition since the operation.
For all these reasons, as well as for those contained in the reasons for judgment delivered by Aylesworth J. on behalf of the Court of Appeal, I would dismiss this appeal with costs.
Appeal dismissed with costs.
Solicitors for the plaintiffs, appellants: Nelligan & Power, Ottawa.
Solicitors for the defendant, respondent: McCarthy & McCarthy, Toronto.
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