General surgeons not subject to the same standard of care as specialists: court

Manitoba’s Court of Queen’s Bench ruled that in assessing medical malpractice cases, general surgeons are not subject to the same standard of care as specialists.

In Dumesnil v. Dr. Jacob et al., 2021 MBQB 240, Danielle Marie-Claire Dumesnil was involved in a motor vehicle accident and suffered a fracture of her left ankle, specifically the calcaneus. Dumesnil was referred to Jacob in Boundary Trails Health Centre. After an assessment, Jacob recommended that Dumesnil undergo surgery, specifically an open reduction internal fixation (ORIF). The surgery was performed the next day without complication.

Two months later, Dumesnil returned to Jacob, who found dead tissue collecting at the bottom of the surgical wound. He recommended that a debridement be performed to promote healing, which was performed the next day. Three days after the surgery, Dumesnil observed a foul smell emanating from her wound. She was assessed by two specialists and was diagnosed with osteomyelitis or infection in the bone, which doctors subsequently treated.

Alleging medical negligence, Dumesnil claimed that Dr. Jacob breached the expected standard of care of a specialist in orthopaedic trauma surgeries when he proceeded with surgery at an inappropriate time and performed ineffective debridement that led to infection.

However, after having assessed the conflicting expert evidence, the court found that Dr. Jacob did not breach the standard of care.

Contrary to Dumesnil’s assertions, the court ruled that Jacob was a community-based general surgeon practicing orthopaedics, and consequently, not subject to the same standard of care expected from a specialist. The fact that over half of his practice is orthopaedics does not elevate him to the level of a specialist, said the court.

As to the timing of the ORIF surgery, the court found that performing the surgery within 36 hours did not contribute to an adverse outcome.

Dumesnil’s expert submitted that swelling impacts when surgery is to be performed, and that Jacob took an unnecessary risk when he performed the surgery within 36 hours after the accident. However, as rebutted by Jacob’s expert, the swelling was not as severe as the expert suggested, and it was properly controlled by elevation and a foot pump, said the court.

Further, the court observed that Dumesnil’s experts practice in a large urban facility where hospital bed availability is one of the factors impacting surgery. In contrast, Jacob practiced in a rural setting which provided him with immediate access to a fully equipped and staffed surgical suite, said the court. 

Despite finding that the debridement caused the infection, the court ruled that Jacob met the expected standard of care. Infection is a risk associated with surgery, and it was fully treated within days, said the court.

While less than ideal after surgery, Dumesnil’s condition was directly attributable to the accident and the resulting injuries, and there was “nothing in the medical record to indicate her outcome was anything other than anticipated in these types of injuries,” said the court.