Lennox v Burns, 2016 ONSC 2993 (CanLII)

This was a medical negligence claim against a general surgeon following a Hartmann’s procedure and colostomy reversal.  Failure to secure informed consent, and failure of surgical and post-operative standard of care were at issue.

Released May 17, 2016 | Full Decision [CanLII]

The plaintiff, Gregory Lennox, underwent surgery on March 26, 2007, in response to a perforated diverticulum.  A colostomy was urgently required to avoid peritonitis, a potentially life-threatening condition.  The surgery, known as a Hartmann’s procedure, was performed by Dr. Andrew Burns, an apparently skilled but inexperienced general surgeon.

Following the procedure, Mr. Lennox requested a reversal of the procedure within a month of the initial surgery, as he found the colostomy a nuisance.  Ordinarily, a Hartmann procedure is reversed between three and twelve months post-operatively.   Although Dr. Burns recommended waiting 6 months, he agreed to do it on August 7, 2007 in response to Mr. Lennox’s request.

Typically, the reversal surgery is a three hour procedure and can be attempted laparoscopically.  In Mr. Lennox’s case, it took 11.5 hours, as a result of dense adhesions in the abdominal cavity, which had to be dissected.   During the course of the surgery, many perforations were caused while dissecting the small intestine from the abdominal wall.  Dr. Burns repaired the visible damage, and checked the small intestine for patency before completing the colostomy reversal.

Following the reversal, Mr. Lennox developed several devastating complications including three holes in the small bowel requiring surgery, left femoral nerve damage and a C.diff infection.  Subsequently, a small bowel fistula was identified and repaired by another surgeon.  Ongoing complications including another fistula persisted for months, leading to a second colostomy operation by Dr. Mustard on June 16, 2010 (reversed on September 26, 2012).  As a result of the post-surgical course, Mr. Lennox requires permanent intravenous nutrition.

At trial, the Plaintiff alleged that he did not provide informed consent to the procedure and that had he been aware of the risks, he would not have elected to reverse the procedure.  He further alleged that Dr. Burns failed to meet the standard of care surgically and post-operatively.

Regarding informed consent, Justice Mew reviewed the applicable principles, and held that Dr. Burns had met the standard of care.  The two areas of concern were whether Dr. Burns should have disclosed the possibility that he might not be able to complete the surgery, and whether he should have identified femoral nerve damage as a risk.   His Honour agreed that Dr. Burns was not duty-bound to disclose the possibility that he would have to abandon the procedure.  He accepted the opinions of the experts that femoral nerve damage was not within the reasonably foreseeable spectrum of risks associated with the surgery.

Regarding the surgical standard of care, Justice Mew identified several potential breaches.  He found that the standard had been met relating to the point of entry for the initial laparoscopic attempt, the planning of the contemplated procedure, and surgical technique.  His Honour also accepted that Dr. Burns gave due consideration to terminating the surgery, but in his clinical judgment could not do so safely.  As well, the failure to consult another surgeon did not represent a breach of the standard of care, although in hindsight, it would have likely been prudent.

Regarding the femoral nerve damage, it was acknowledged that this was an unforeseen and unexpected consequence of the marathon surgery, the exact cause of which could not be identified.  The Plaintiff argued that it would have been avoided if the surgery had been terminated earlier.  However, as Justice Mew did not find that proceeding with the surgery fell below the standard, the unforeseen nerve damage likewise did not represent a breach.

Regarding post-operative care, the Plaintiff argued that Dr. Burns’ failure to consult an infectious disease expert at the first appearance of the C.diff bacteria.  Justice Mew did not accept this position, and again found that the standard of care had been met.

Regarding causation, Justice Mew held that even if informed consent had not been given, the evidence indicated that Mr. Lennox would have proceeded with the surgery in any event.  The pivotal point regarding causation for the alleged surgical breaches was the failure to terminate the surgery on discovery of the adhesions and subsequent misadventures during the dissection.  It was agreed by the experts that the point at which retraction should have occurred (if at all) was approximately 3.5 hours into the surgery, after multiple repairs to the small bowel had already been completed.  While the risk of femoral nerve damage may have been decreased, the Plaintiff would have been left with a hastily closed abdomen and a colostomy.  There was no way of telling the nature and extent of subsequent complications from that point.

Therefore, Justice Mew dismissed the action, and encouraged the parties to agree on the costs.

Read the full decision on CanLII
Keith Finley
Written by

Keith was raised in Etobicoke, and is excited to return to the GTA in order to practice plaintiff personal injury law. After his call to the Bar in 2009, Keith worked briefly for TD Insurance as in-house legal counsel, prior to moving to London for family reasons. He has spent the last two years working exclusively in plaintiff personal injury and medical malpractice law with a leading firm.

Through his volunteer work, he has written for The Monarch, the Brain Injury Association of London and Region’s quarterly magazine and sat on their Community Outreach committee. He was also a member of the Spinal Cord Injury of Ontario’s Fundraising Committee 2013-2014.

Keith is devoted to his wife and two boys. He loves to cook, and enjoys a good book when he isn’t working.