Ontario Superior Court holds doctor liable for premature removal of a surgical hardware

The Ontario Superior Court of Justice has affirmed a surgeon's liability for prematurely removing surgical hardware, which led to the patient's subsequent re-fracture.

The dispute in Kotorashvili v. Lee, 2024 ONSC 1495 stemmed from an incident where the plaintiff suffered a severe fracture of her collarbone. She sustained the injury while participating in mixed martial arts. The defendant doctor surgically repaired her right clavicle by implanting a plate with fixed screws.

The defendant’s treatment plan was to see the plaintiff in three months’ time for further review with repeat X-rays and “the possibility of removing the hardware in the future.” Less than three months later, the defendant surgically removed the plate and screws. The plaintiff subsequently suffered a re-fracture of her clavicle shortly after the surgery.

The Superior Court ruled that the defendant doctor was negligent in his premature decision to remove the surgical hardware from the plaintiff’s fractured clavicle, causing a re-fracture and necessitating further medical procedures.  The court examined the sequence of events, emphasizing the defendant’s deviation from his initial treatment plan, which lacked the support of updated clinical assessments or imaging before the surgery.

The ruling focused on whether the defendant's early removal of the hardware amounted to negligence, whether this action directly led to the plaintiff's injury, and whether the plaintiff's follow-up surgery was chosen for cosmetic reasons or was needed for reconstruction.

The court found that the defendant’s choice to operate earlier than planned, without new X-rays or clinical findings, was a clear breach of the standard care level, leading directly to the clavicle's re-fracture. This act of negligence necessitated a third surgery for the plaintiff, intended to correct the resultant bump and asymmetry on her shoulder—a procedure that the court deemed necessary for reconstruction rather than elective or cosmetic.

The court awarded the plaintiff non-pecuniary damages, acknowledging the impact of the re-fracture, prolonged recovery, and additional surgery on her well-being. Furthermore, the court adjusted the pre-judgment interest rate to reflect a more suitable rate given the economic conditions since the action commenced.