C.A. No. 02881
NOVA SCOTIA COURT OF APPEAL
Hallett, Hart and Matthews, JJ.A.
Cite as: Parr v. Mirza, 1994 NSCA 16
BETWEEN:
JOHN A. PARR ) M. Joseph Rizzetto
) for the Appellant
Appellant )
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- and - )
) Brian W. Downie
) for the Respondent
AIJAZ M. MIRZA )
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Respondent ) Appeal Heard:
) December 6, 1993
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) Judgment Delivered:
) January 6, 1994
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THE COURT: Appeal dismissed with costs which should be fixed at 40% of the amount awarded in the trial court per reasons for judgment of Hart, J.A.; Hallett and Matthews, JJ.A. concurring.
HART, J.A.
In June 1982 the appellant, Parr, received an injury to his right shoulder as a result of a fall while working as a labourer. He complained of pain and was treated by various doctors without relief.
Mr. Parr was referred to Dr. Mirza, the respondent, who was practicing general orthopaedic surgery in Glace Bay. His practice included acute problems of the shoulder and other joints of the body and he held the position of Chief of Surgery and President of the Medical Staff at Glace Bay General Hospital.
Dr. Mirza first saw Mr. Parr on March 8, 1983. He diagnosed acromio-clavicular arthritis and injected the acromioclavicular joint appropriately. Mr. Parr continued to complain of pain through his own doctor, Dr. Oei and on four visits to Dr. Mirza.
On October 14, 1986, Mr. Parr was admitted to the hospital and an operation was performed by Dr. Mirza. The evidence at trial indicated that Mr. Parr's right clavicle was excised and the coracoacromial ligament was divided. With the previous impression that there had been tendonitis in the acromioclavicular joint, the area was examined by Dr. Mirza who placed his finger at the inferior undersurface of the acromion (between the acromion and the rotator cuff muscle) and felt a roughening of the bone. An inflammatory process was noted and as an adjunct to the procedure a cut was made across the acromion obliquely and a portion of the inferior undersurface of the acromion was removed.
According to the operative record which was entitled "Partial right acromionectomy - Decompression right shoulder joint", a partial acromionectomy was done parallel to the lateral border of the acromion in an oblique fashion and the lower part of the osteotomy site was smoothened out"
After the operation Dr. Mirza prescribed physiotherapy. Mr. Parr continued to complain of pain and on February 4, 1987, under full anaesthesia his shoulder was put through a full range of movements without difficulty. Dr. Mirza continued to follow his patient until February 18, 1987, when he felt there was nothing further he could do to treat him.
Mr. Parr was subsequently referred to Dr. Gerald P. Reardon, an orthopaedic surgeon in Halifax. In his report to Dr. Oei of October 19, 1987, he stated:
" I reviewed the recent shoulder studies on Mr. Parr. His plain films reveal that he has had a resection of a portion of the acromion, that is a partial acromionectomy.
The arthrogram was normal. There is no tear of the rotator cuff. The CT Scan reveals damage to the anterior glenoid labrium.
Mr. Parr is still having considerable discomfort and the shoulder a limitation of his range of motion. There doesn't seem to be much doubt that this all stems from his original injury. I would like to make a comment on the acromionectomy. A partial acromionectomy is not usually performed much any more as it has been replaced by an acromioplasty. There is a significant difference. The partial acromionectomy has been shown to have a significant poor result. It changes the lever arm of the deltoid muscle and interferes with the rehabilitation and the restoration of the range of motion. The majority of patients are also left with significant discomfort. The acromioplasty, which removes the undersurface of the acromion and basically leaves the anatomy intact other than decompressing the subacromial space, is generally accepted as the way to go with this type of subacromial impingement problem.
I would feel that therefore this has direct bearing on his present condition. I think his problem is going to be permanent and I don't feel that there is anything that we can do surgically to restore function. This man is going to be left with a permanent disability."
Mr. Parr then commenced this malpractice suit against Dr. Mirza alleging:
" 4. On or about February 4th, 1987, the Defendant performed surgery on the Plaintiff's shoulder area, being the area from which the Plaintiff was suffering.
(5) In breach of his duty to the Plaintiff, the Defendant negligently and unskillfully treated the Plaintiff for the said ailment, in particular:
(a) Failed to properly diagnose the ailment from which he was suffering;
(b) Performed an incorrect, unacceptable and outdated type of surgical operation which resulted in a permanent, irreparable disability to the Plaintiff;
(c) Failed to be aware of the proper surgical procedure to be used for this type of ailment;
(d) Performed a type of surgical operation which resulted in a worsening of the Plaintiff's condition and which left the Plaintiff permanently disabled;
(e) Provided medical services to the Plaintiff in a grossly negligence fashion;
(f) The Defendant failed to provide any or sufficient information upon which the Defendant could make an informed consent to the operation which was performed."
After five days of trial and the consideration of much expert testimony the trial judge reached the conclusion that Mr. Parr had been properly advised about the nature of the operation in advance and that the operation conducted was somewhere in between an acromionectomy and an acromioplasty. He concluded it was an appropriate procedure to follow and that there had been no negligence in the selection or performance of the operation by Dr. Mirza. He thereupon dismissed the plaintiff's claim with costs.
From this decision Mr. Parr now appeals.
The first ground of appeal is that the trial judge improperly considered the evidence of a medical report of Dr. Michael Gross which was not before him.
Counsel for the respondent had intended to call Dr. Gross as one of his experts and his report was included in the list of exhibits prepared for the court. During the trial the report, along with many other exhibits contained in a bound folder, was presented to the court without objection by counsel for Mr. Parr. When it was revealed that Dr. Gross would not be called no motion to remove this exhibit was advanced and no mention was made of it in argument.
The report was before the court and although the trial judge referred to it he remarked that the witness had not testified. There was nothing in the report that substantially disagreed with the other experts called by Dr. Mirza. Without considering this report the trial judge could have reached the conclusions that he did. Although the report was left before the court by inadvertence it did not materially affect the decision and I would therefore reject this ground of appeal.
The second ground of appeal alleged that the trial judge erred in holding that the operation which Dr. Mirza performed on Mr. Parr, being a partial acromionectomy, did not constitute negligence and was in accordance with the standard of the approved or customary practices of orthopaedic surgeons performing shoulder surgery in North America.
The evidence revealed that an operation known as a partial acromionectomy had fallen into disuse in recent years and was replaced by an operation called an acromioplasty. Not all surgeons agree, however, that the newer procedure is better than the former and the matter is still controversial among members of the profession. Furthermore, the terms used to describe the operations vary and it is difficult to determine whether what is being described is the former type of operation where a substantial part of the bone is removed or the latter type where the joint is made more workable without removal of much of the bone structure.
Mr. Justice Nathanson in his decision stated:
" The first step in deciding this issue is to ascertain exactly what operation was performed by Dr. Mirza. The second step is to determine whether the operation which Dr. Mirza performed was appropriate or inappropriate.
Complete acromionectomy is the surgical removal of 100 percent of the acromion. Lateral acromionectomy is the removal of approximately 20 percent of the acromion. Anterior acromioplasty is the removal of the anterior edge and undersurface of the anterior part of the acromion.
The earliest description of the operation performed by Dr. Mirza is contained in the written operative record of the operation. That document describes the nature of the operation as both a partial right acromionectomy and an arthoplasty, and describes the manner in which the operation was carried out in these words: "Partial acromionectomy was done parallel to the lateral border of the acromion in an oblique fashion".
Dr. Mirza expanded upon that description in his testimony at trial. He said he had removed 7 or 8 mm. from the anterior and underside of the acromion."
After reviewing the evidence of the experts he continued:
" Dr. Mirza's operative record does not describe the operation as acromioplasty. He either did not know that word, and the type of operation which it describes, or he used the words "partial acromionectomy" intentionally. Since there is nothing in the evidence to indicate that Dr. Mirza was ignorant of the term "acromioplasty" or the operation which the term describes, I find that the record reflects his intention to describe the operation which he performed as a partial acromionectomy.
Thus, the operative record describes an operation in which the acromion was cut parallel to its lateral border in an oblique fashion. I find that this accords with the definition of an acromionectomy. I further find that Dr. Mirza's qualification of the acromionectomy as a partial acromionectomy indicates that the amount of bone which he removed was less than the 20 percent of the acromion which is contemplated by the definition of a lateral acromionectomy. Finally, I find that the removal of a lateral portion of the acromion by means of a partial acromionectomy as described by Dr. Mirza would, and necessarily did, include removal of a portion of the anterior and under side of the acromion.
These findings are consistent with the opinion expressed by Dr. Reardon to the effect that Dr. Mirza had performed a lateral partial acromionectomy which involved removal of the lateral or outer portion of the acromion. These findings are also consistent in varying degrees with the expert opinions expressed by Dr. White, Dr. Michael Gross, Dr. Allen E. Gross and Dr. Reginald H. Yabsley.
In effect, I accept that Dr. Mirza did not perform a classic lateral acromionectomy nor the newer anterior acromioplasty. I find that he performed a partial lateral acromionectomy, which approaches in similarity, but is not the same as, an anterior acromioplasty."
The trial judge then turned to the appropriateness of the operation performed and concluded:
" The weight of the evidence is that prior to approximately 1971, when the Neer paper describing the acromioplasty operation was published, the approved or customary practice of orthopaedic surgeons in North America was the lateral acromionectomy operation; the Neer paper began to change that practice by persuasively arguing for the benefits of an alternative operation which he referred to as anterior acromioplasty; and by 1986, the year in which Dr. Mirza operated on the plaintiff patient, the profession of orthopaedic surgery had not totally rejected the old general practice nor completely adopted the new general practice. Two general practices existed side by side, each having its proponents, but probably with a long-term trend towards adoption of the new general practice of anterior acromioplasty. It was not possible to say in 1986, nor is it possible to say today, that either operation has received universal acceptance as the sole approved or customary practice of the profession.
This is not a case of failure to adopt and comply with the sole general practice. Rather, this is a situation where we find medical science in transition so that there are two general practices. Dr. Mirza performed an operation which was akin to both of those general practices and which he considered to be proper according to the particular physical condition of the plaintiff patient's shoulder. In such circumstances, I hold that he did not fail to comply with the general practices and was not negligent."
The duty of the court is not to retry the case but to see whether there was evidence upon which the trial judge could have reasonably relied to reach his conclusion. In my opinion there is an abundance of such evidence some of which is as follows: Dr. Allan E. Gross, professor and Chairman of the Division of Orthopaedic Surgery at the University of Toronto and Head of Orthopaedic Surgery at Mount Sinai Hospital in Toronto stated:
" After reviewing all of the documentation, I think that the plaintiff's case rests on the assertion that Dr. Mirza's acromionectomy was not performed in a way that would be acceptable by 1986 standards. The reasons for this have been outlined in the letters by Dr. Reardon and Dr. White. The reason why the operation of acromionectomy, as it has been done in the past, was criticized, is because of the removal of too much bone, which interfered with the re-attachment of the deltoid muscle and also with the leverage of the deltoid muscle. For this reason, the classical acromionectomy was no longer popular, and instead, surgeons started doing an acromioplasty, which really creates a clearance for the rotator cuff, but leaves the structural integrity of the acromion. Dr. Mirza has been criticized because it was felt by these two surgeons that he has performed the old style acromionectomy.
In respect of the position of Dr. Mirza, I would like to state the following: Dr. Mirza's surgical approach was determined by the fact that he felt, through his clinical assessment, x-rays, and having kept the patient under observation for a long period of time, that the major pathology was in the acromioclavicular joint. The most important part of the bony operation, therefore, was the excision of the outer end of the clavicle because of the osteoarthritic process in the acromioclavicular joint. At the same time as he did this, Dr. Mirza elected to cut the coracoacromial ligament in order to allow better clearance for the rotator cuff, in case that contributed in some part to the man's symptomatology. He then took a small amount of bone away from the acromion. In his operative note, it was very difficult to tell how much bone was taken from the acromion and exactly where it was taken from. According to Dr. Mirza, he did what is now called an acromioplasty. According to the other two doctors, he did what is felt to be an acromionectomy by the old standards. However, the x-rays, including a CAT scan which I did not have a chance to review, do not reveal evidence of excessive bone excision from the acromion.
This means that the patient had a small spur, probably, removed and in fact did not have either the old style acromionectomy or a formal acromioplasty. There are surgeons who do cut the coracoacromial ligament without adding the formal acromioplasty, even in 1991.
In summary, therefore, I think that Dr. Mirza, and justifiably so, felt that the man's major problem was in the acromioclavicular joint. For this reason, he did an excision of the other end of the clavicle. At the same time, he cut the coracoacromial ligament, to make sure that the rotator cuff was not being impinged upon, and he took a small amount of bone from the acromion. It is not clear where this bone came from, but the patient certainly did not have a formal acromionectomy by the old standards, because this would be more apparent on his plain x-rays. Also, it was not apparent on his CAT scans, although I did not have a chance to review those. The operative note is not very clear, and therefore, the amount of acromionectomy that was done has to depend on what Dr. Mirza states, and what the physical examination and the radiological assessment demonstrate. None of these entities demonstrate that very much acromion was excised, and it appears that the acromionectomy was just the excision of a small amount of bone, really as an incident procedure. This, by itself, does not indicate to me that Dr. Mirza was negligent or was not practicing in an acceptable way by 1991 standards, particularly since he felt that the primary pathology was in the acromioclavicular joint. The fact that this man's rotator cuff has always been intact and never has demonstrated any real pathology would further confirm this."
Dr. Reginald H. Yabsley, Professor of Orthopaedic Surgery at Dalhousie and Chief of Orthopaedic Surgery at the Victoria General Hospital in Halifax stated in his report:
" The surgery by Dr. Mirza was carried out after an interval from injury of approximately 4 1/2 years.
Dr. Mirza's operation was titled, "Partial right acromionectomy. Decompression right shoulder joint." The operation was performed on October 15, 1986, and the operative record was dictated on that same day. He therefore has established that he attempted to carry out a decompression of the right shoulder, and his pre-operative and post-operative diagnoses are the same, "right AC joint arthritis, right shoulder impingement syndrome."
He therefore appears to have had a definite appreciation of what he felt to be the difficulty with Mr. Parr's shoulder and his operation was appropriately planned.
He performed a right partial acromionectomy, a resection of the distal clavicle and division of the coracoacromial ligament. It would seem that this was appropriate treatment for Mr. Parr's difficulty.
It should be pointed out that the diagnosis "impingement syndrome" is just that - a syndrome, that is to say, a collection of signs and symptoms which may be caused by various etiologies. It is not a scientific nor precise diagnostic concept. For want of a better term, however, this description is the standard and accepted one at this time. When Dr. Charles Neer, to whose work and writings numerous references have been made, published his article entitled, "On the Disadvantages of Radical Acromionectomy", he stated that the procedure known as an anterior acromioplasty is not just one of bone excision, but contains three features - anterior acromionectomy, the division of the coracoclavicular ligament, and excision of the outer portion of the clavicle.
Dr. Mirza carried out the excision of the outer end of the clavicle and division of the acromioclavicular ligament. The distinction between acromionectomy and acromioplasty has created certain difficulties in this case. Dr. Mirza appears to have been conscious of the need to decompress the shoulder because of an "impingement syndrome", and his description would suggest that the portion of the acromion that he took away - that is, acromionectomy - was that which was appropriate in his view to decompress his shoulder. The decision has to be left to the surgeon as to precisely that area which has to be removed. Certainly today in most cases anterioinferior acromionectomy seems, it is felt, to account for most decompressive sites. It cannot be said, though, that Dr. Mirza removed an inappropriate portion of bone. His operative report points out that he made attempts to smooth the lower part of the osteotomy site, and there can be little doubt in my mind that he was operating appropriately."
In my opinion the trial judge's finding that there was no negligence on the part of Dr. Mirza was fully justified by the evidence before him and I would reject this ground of appeal.
Finally, it is alleged that the trial judge erred in holding that Dr. Mirza made proper and adequate disclosure to his patient prior to surgery and had obtained informed consent for the operation. Mr. Justice Nathanson rejected the evidence of Mr. Parr on this issue and stated:
" In light of the finding which I have made as to the credibility of the plaintiff patient on this point, and my view of the testimony of Dr. Mirza, I am compelled to hold that the plaintiff patient has not carried the burden of proof which rests upon him to satisfy the Court on a preponderance of credible evidence that Dr. Mirza did not disclose all material risks and special or unusual risks of the proposed surgery. I hold that Dr. Mirza did not fail to disclose that the operation might result in the shoulder having a reduced range of movement.
The surgeon was not negligent by failing to obtain the patient's informed consent."
In view of this factual finding I would reject this ground of appeal.
For all of these reasons, I would dismiss this appeal with costs which should be fixed at 40% of the amount awarded in the trial court.
Hart, J.A.
Concurred in:
Hallett, J.A.
Matthews, J.A.
C.A. No.02881
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
JOHN A. PARR )
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Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
AIJAZ M. MIRZA )
) HART, J.A.
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Respondent )
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