Addressing factual causation need not always precede conclusion on standard of care: Manitoba case

Orthopedic surgeon did not breach standard of care, appellate court's majority determines

Addressing factual causation need not always precede conclusion on standard of care: Manitoba case

In a recent medical malpractice case, the Manitoba Court of Appeal found that the trial judge did not err by addressing the issue of factual causation before deciding whether the defendant had breached the standard of care.

In Rutherford v Wiens, 2021 MBCA 84, the plaintiff first visited the defendant orthopedic surgeon in November 2012 for problems with her left foot but started experiencing more urgent issues involving her left knee a few months later. The defendant’s preoperative diagnosis was a tear in the lateral meniscus, which is the cartilage in the knee between the two bones of the leg. In January 2013, the defendant performed arthroscopic knee surgery on the plaintiff, which was reportedly uneventful.

Shortly after the surgery, the plaintiff suffered from pain and circulation issues in her lower leg, which turned out to be caused by a pseudoaneurysm in the popliteal artery behind her left knee. A vascular surgeon, finding a discontinuity of the plaintiff’s artery due to direct trauma, conducted a vascular surgical repair procedure.

The plaintiff, who continues to suffer pain due to the pseudoaneurysm, filed a medical malpractice action. The trial judge determined that the defendant correctly decided to perform arthroscopic knee surgery and used the appropriate instruments and procedures.

The issue in the appeal was whether the trial judge should have determined the injury’s factual causation before deciding whether the defendant had breached the applicable standard of care.

The majority of the Court of Appeal of Manitoba dismissed the plaintiff’s appeal. While they agreed with their dissenting colleague that determining factual causation is sometimes necessary before concluding whether there has been a breach of the standard of care, the majority concluded that it was unnecessary to do so in this case. Even if they considered the issue of causation first, the majority found, there could still be no finding of a breach of the standard of care.

The majority said that the trial judge did not err when she briefly addressed causation then concluded that the plaintiff failed to prove that the defendant did anything, or failed to do anything, that caused injury to the popliteal artery. The majority found that the defendant, who conducted a routinely performed procedure in the standard manner, did not breach the standard of care.

The majority noted that the defendant claimed that he did not enter the posterior compartment of the plaintiff’s knee and did not trim the synovium against the posterior capsule during the surgery. The experts agreed, the majority found, that an injury to the popliteal artery, although rare, was a recognized complication following knee arthroscopy that could occur even without negligence.

The evidence of the defendant and his expert who focuses on arthroscopic knee surgery rebutted the dissenting judge’s inference that an excursion out of the knee capsule was the most likely cause of the plaintiff’s injury, the majority concluded.

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