Ontario court summarily dismisses medical negligence action relating to tummy-tuck operation

In a medical negligence action seeking damages, the plaintiff patient should show on a balance of probabilities the applicable standard of care, the defendant doctor’s breach of that standard of care and causation in fact and in law.

In Piatkowski et al v. Drakos, 2021 ONSC 4531, the plaintiff patient initiated a medical negligence action in November 2015, alleging that she experienced a postoperative complication that left some unsightly scarring on her abdomen because of the defendant plastic surgeon’s negligence during the preoperative, operative and postoperative treatment for a “tummy-tuck” operation in November 2013.

The defendant failed to properly acquire the plaintiff’s informed consent to the operation and treatment and failed to timely disclose the risks of wound complications, skin necrosis and scarring, the plaintiff alleged, adding that she would not have proceeded with the surgery if she had been aware of such risks beforehand.

The Superior Court of Justice of Ontario granted the defendant’s motion for summary judgment to dismiss the plaintiff’s medical negligence action on the basis that there was no genuine issue requiring a trial, as well as dismissed the plaintiff’s claim for summary judgment in her favour against the defendant.

The court, considering the evidence of the defendant;’s expert plastic surgeon, found that all aspects of the surgery and treatment, including the preoperative planning, technical performance of the procedure and postoperative management of the wound complications, met the required standard of care. As for the plaintiff’s two expert plastic surgeons, the court found that their affidavit evidence did not establish that the defendant fell below the expected standard of care.

With regard to the issue of causation, the court noted that the medical experts agreed that skin necrosis due to the plaintiff’s diminished blood flow was a known complication of tummy-tuck surgery, which could happen even without any surgical factors or discernible causes. The court declined to find or to infer, without any expert evidence to support such, that the cause of the plaintiff’s skin necrosis was due to excess pressure on her abdomen during or after the surgery.

On the issue of whether there was a lack of informed consent, the court cited the defendant’s evidence claiming that he had reviewed the potential risks with the plaintiff before she agreed to undergo the operation, as supported by his contemporaneous records and by his usual practice. On the other hand, neither the plaintiff nor her spouse provided evidence supporting her version of the events or disputing the defendant’s version, the court said, noting that the plaintiff had admitted that she understood that there was a risk that the wound on her abdomen would not heal in the way that she hoped it would.

The court concluded that the plaintiff had failed to provide evidence of her own or expert evidence that met the onus on her part to show that there was a genuine issue requiring a trial.