BC Supreme Court rejects medical negligence claim against urologist

He is one of the few doctors trained in robotic prostatectomy

BC Supreme Court rejects medical negligence claim against urologist

The BC Supreme Court has dismissed a medical negligence claim against a urologist who is one of the few doctors trained in robotic prostatectomy.

In Lee v. Black, 2023 BCSC 1920, Byung Kyu Lee was diagnosed with high-grade prostate cancer, requiring urgent surgery. Dr. Peter Black is a urologist specializing in oncological surgery for prostate and renal cancer. Lee went to the Vancouver Prostate Centre (VPC) at the Vancouver General Hospital (VGH), where he met Dr. Black.

Dr. Black was one of few urologists who had received training in robotic prostatectomy, done by a form of laparoscopic surgery, which has become recognized as the preferred treatment for most prostate cancers. Dr. Black performed a robotic prostatectomy on Mr. Lee to remove the prostate and eradicate the prostate cancer.

The surgery went well, but he experienced urinary incontinence that persisted beyond the expected six to 12-month period, a recognized risk of treatment for prostate cancer.

After the surgery, Dr. Black followed up with Lee for a considerable period regarding his postoperative healing and the cancer. Due to Lee’s ongoing incontinence, Black referred him to a urologist who specializes in urinary incontinence.

Lee’s condition did not improve, and he became increasingly combative in his interactions with the VPC staff. He was eventually referred to a physician at St. Paul’s Hospital for ongoing treatment of his incontinence, and he was informed that he could no longer attend VPC.

Lee commenced a medical malpractice lawsuit against Dr. Black, believing that his incontinence was the result of negligence on the part of Dr. Black in the performance of the surgery. He also claimed that Dr. Black failed to provide him with all necessary information concerning the risks of the surgery.

Dr. Black argued that robotic prostatectomy surgery was an appropriate choice of treatment for Lee and was performed to the requisite standard of care of a reasonable and competent urologic surgeon. He asserted that Lee was fully aware of the risks and benefits before the surgery and gave his informed consent.

The BC Supreme Court ultimately rejected Lee’s claims against Dr. Black, finding that Dr. Black met the standard of care of a reasonable and competent urologic surgeon, and he had obtained Lee’s informed consent to the robotic prostatectomy.

Standard of Care

The court explained that it is a well-established law that a physician is expected to possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases. The court found that Lee failed to establish that Dr. Black did not meet the standard of care of a urologic surgeon practising in an urban centre in 2016 and 2017.

The court accepted an expert’s testimony declaring that Dr. Black met the appropriate standard of care concerning diagnosis, surgical treatment, postoperative monitoring and follow-up care. The court found that the evidence overwhelmingly established that Dr. Black was a caring, competent and diligent surgeon in all aspects of Lee’s care. The court said that Lee proved to be a difficult, angry and demanding patient, but Dr. Black continued to give him optimal care despite his abusive behaviour. The court also noted that Lee’s conduct was so disruptive to the clinic that the medical staff at the VGH decided he could no longer attend the clinic.

The court further noted that ongoing urinary incontinence was a known possible risk of the surgery. It was an even higher risk with the alternative treatment of radiation therapy. Lee’s prostate cancer placed him at increased risk of death had he not been treated by either robotic surgery or radiation. Accordingly, the court concluded that Dr. Black met the required standard of care in his treatment of Lee.

Informed Consent

Lee argued that Dr. Black failed to inform him of the material risks that are known to accompany robotic surgery, and Dr. Black failed to provide him with sufficient information about the risks and benefits of radiation therapy such that Lee was precluded from making an informed choice between radiation therapy and robotic surgery.

The court acknowledged that a physician must disclose “the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.” A material risk is one carrying severe consequences.

The court found that Dr. Black had Lee sign a consent to the robotic surgery, which contained the risks of the surgery. Furthermore, Dr. Black explained to Lee that because of his medical history, age and other factors, he would not recommend radiation therapy. Dr. Black’s evidence was that he told Lee he could refer him to a radiology specialist to discuss that option, but Lee declined.

The court concluded that a reasonable person, fully informed of Lee’s position, would likely have proceeded as he did. He had a confirmed diagnosis of high-risk cancer. It was necessary to treat the cancer to prevent his death. All of the treatment options came with potential complications that were relatively similar, but with Lee’s preoperative urinary incontinence, robotic surgery was the better option.

Accordingly, the court found that Lee had not established that Dr. Black had failed to obtain his informed consent for the robotic surgery. Ultimately, the court dismissed all of Lee’s claims.

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