Defendant satisfied his duty to inform plaintiff of the nature of the risks: court
The Court of King’s Bench of Manitoba dismissed a woman’s negligence claim against a surgeon in connection to a serious infection she suffered after surgery on her injured knee.
In Perdue v. MacDonald, 2022 MBKB 204, the plaintiff, Lori Diane Perdue, suffered a knee injury while playing basketball with her son in June 2013. The defendant, Peter Benjamin Macdonald, then performed knee surgery on her to repair her torn meniscus and reconstruct her ruptured anterior cruciate ligament (ACL). The ACL reconstruction surgery included the implantation of an allograft − a graft tissue obtained from a deceased donor.
Following the surgery, a serious infection developed in the plaintiff’s knee that required the removal of the implanted allograft and treatment with intravenous antibiotics. As a result of the alleged failed surgery, the plaintiff could not work for an extended period. She subsequently filed a negligence claim against the defendant before the Court of King’s Bench.
The Court of King’s Bench dismissed the lawsuit and found that the defendant satisfied his duty of care in obtaining the plaintiff’s consent to the ACL reconstruction surgery using an allograft.
The plaintiff argued that the defendant had not mentioned using an allograft to reconstruct her ruptured ACL when they discussed her injury and the proposed surgical treatment before the day of the surgery. Although she signed a consent form on the morning of surgery, she did so without being fully informed about the procedure. The court disagreed.
The court noted that the defendant testified that before the day of surgery, he discussed with the plaintiff the options for ACL reconstruction and the pros and cons of using an allograft for ACL reconstruction, as was his usual practice. The doctor recommended an allograft to her because it was generally preferable for patients in her age group.
Moreover, the court found that the documents prepared by the defendant’s staff showed that the surgery was at least tentatively scheduled to proceed on June 24, 2013. It also found that a booking request form was sent to the Pan Am Clinic on June 18, 2013, indicating that a tibialis posterior allograft would be required, and the requisition for a tibialis posterior allograft was faxed to the Tissue Bank on the same day.
“It was clear that in giving his testimony, Dr. MacDonald was relying very much on his usual practice,” Justice Sadie Bond wrote. “There was nothing untoward about him doing so and the court is entitled to accept that evidence.”
The court stressed that although there were some weaknesses in the defendant’s testimony, dependent on his usual practice, it was more likely than not that he discussed the use of an allograft with the plaintiff before the day of surgery.
“Having come to that conclusion, I would add that even if Dr. MacDonald did not discuss an allograft with Ms. Perdue in advance of the day of surgery, I nevertheless find that his discussion with Ms. Perdue on the day of surgery met the standard of care for informed consent.”
The plaintiff argued that the discussion about an allograft on the morning of surgery could not satisfy the duty to inform because she had no opportunity to research allograft or consult with friends and family about it, and she was under pressure to agree to the surgery. The court did not think so.
According to the court, while Dr. Nguyen and Dr. Taillon − expert witnesses of the plaintiff and the defendant, respectively − agreed that discussions leading to informed consent should occur in advance of the day of surgery, they also testified that sometimes patients forget earlier discussions and must be re-informed on the morning of surgery. Thus, obtaining consent is an ongoing process that may begin earlier but only be completed on the morning of surgery.
“I conclude that Dr. MacDonald disclosed material risks and information to Ms. Perdue regarding the ACL reconstruction surgery using an allograft,” Justice Bond wrote. “He thereby satisfied the standard of care for informed consent.”
