VICTORIA Hospital has come up short in a High Court case against Shaun Denis and will have to pay $8,000 to him for the negligent handling of a surgical procedure to straighten his right little finger.
The amputation of a segment of that finger was the result of the surgical procedure. Judgement in that matter was delivered last week by Justice Godfrey Smith.
Attorney Alvin St. Clair appeared for Denis while Jan Drysdale appeared for the hospital and the Attorney General, who was also named as a defendant in the matter.
The case has its origins in 2010 when Denis injured his finger and sought the services of Dr. St. Rose for the injury. Dr. St. Rose operated on his finger, resulting in the finger becoming deformed as a consequence of Denis’ failure to follow the instructions on therapy given by Dr. St. Rose, according to court documents.
The documents stated that two years later, on November 27, 2012, Denis consulted Dr. Felix at the orthopedic clinic of the hospital, in the presence of a Dr.Davids, because he wanted the deformity corrected and that prior to consulting with Dr. Felix, he had consulted Dr. St. Rose, who had advised him to live with the deformity. Also, that Denis signed consent forms to undergo surgery, but none of the forms made any mention of, or reference to, any risk of any kind.
Denis’s medical negligence claim was based on two allegations: (1) that Dr. Felix, the orthopedic surgeon at the hospital, fell below the standard of care expected of an orthopedic surgeon in the circumstances of this case, in his treatment and management of Denis’ surgical procedure and (2) that the hospital never advised him of the risk of amputation and, therefore, had not obtained his informed consent for the procedure.
What was vigorously contested was whether Denis was informed of any risks involved in the surgery to correct the deformity of his little finger. Dr. Felix, in his witness statement, said he advised Denis of the various risks associated with the surgery, including reduced grip strength, reduced flexion and the possibility that the surgery may not be successful in correcting the deformity and may result in the loss of the finger due to infection or spasm of the finger.
Denis, on the other hand, strenuously denied that any such risk was ever mentioned to him. He said that when he told Dr. Felix that Dr. St. Rose had advised him to live with the deformity that Dr. Felix had replied, in the presence of Dr.Davids, that Dr. St. Rose was an old man who should go home and rest himself. Dr. Felix denied making such a statement.
Court papers revealed that on December 11, 2012, Dr. Felix performed the first stage of the surgery to straighten Denis’ right little finger and that he instructed Denis on the gentle range of motion exercises necessary and provisionally rebooked him for the second stage of the surgery on December 17, 2012 and prescribed medication to be taken.
Denis denied that Dr. Felix told him anything about gentle range of motion exercises. Denis was re-admitted to the hospital on December 16, 2012 for surgery the following day. According to Dr. Felix, mild swelling with no discharge was noted, the second stage of the surgery was, therefore, cancelled and Denis was prescribed medication for two days with a review to follow.
On December 19, 2012, he was re-admitted to the ward. His finger was noted to be swollen with purulent discharge and was assessed as being septic. He was advised that surgery had to be undertaken immediately and that an amputation had to be performed.
Denis gave evidence, his witness statement being his chief evidence, denying he was ever informed of any risk of amputation. Under cross examination, he maintained his position and also denied that Dr. Felix told him that he stood the risk of getting another infection due to him already having an infection.
He also denied discussing any medical literature with Dr. Felix and that Dr. Felix told him that the operation would have to be done in phases. Denis further denied that Dr. Felix told him there would be a risk of him losing the finger; that Dr. Felix told him to inform him (Dr. Felix) if at any time the finger was not pink and told him about therapy after that first phase of the surgery.
Denis denied Dr. Felix demonstrated any modest movement in the finger and advised him not to over-extend the finger because that would lead to the loss of the finger. Denis admitted he did not read the consent forms before he signed them.
The hospital called Dr. Felix as its sole witness who in his witness statement, which stood as his evidence in chief, stated that Denis was fully informed of the risk of amputation but insisted on the surgical procedure.
Felix, under cross-examination, denied the assertion put to him that at no time did he tell Denis there would be no difficulty in releasing his finger. He insisted that he did tell Denis that accepting the deformity was the best and safest option. He admitted, however, that it was not in the written record that he had stated that it was the “safest” option and that the words “safest option” was not used in the record anywhere. He denied the assertion put to him that he, in fact, never spoke of the possibility of amputation arising.
Dr. Felix also admitted during cross-examination that it was crucial that he informed Denis that amputation was a possibility and stated that he had so informed him. When pressed as to why that advice did not appear in the hospital records, he stated that his notes were incomplete. He said he wrote in his notes when he saw the patient but he was not in possession of those notes, which were kept at the hospital.
Justice Smith, after reviewing all statements, witnesses and evidence before him, entered judgment in Denis’ favour, awarding him general damages in the sum of $8,000 with interest awarded at the statutory rate of six percent from the date of the judgment until payment. Prescribed costs were also awarded in accordance with CPR Part 65.