April 5, 2022

The Court of Appeal of Manitoba (Canada) affirmed the discipline meted out to a surgeon who refused to perform further surgery on his patient who was bleeding internally. A panel of the Inquiry Committee of the College of Physicians and Surgeons of Manitoba (“panel”) found that the surgeon had committed acts of professional misconduct by failing to ensure continuity of care for the patient, by failing to provide appropriate assistance in circumstances where he remained responsible for the patient, and by failing to adequately document his involvement in the care and management of the patient in the medical record.

The panel ordered that the surgeon be reprimanded and that his licence [sic] to practice medicine be suspended for two months. A further hearing to determine costs resulted in the panel ordering that the surgeon pay costs in the amount of $85,000 as a contribution to the costs of the investigation and hearing of the charges.

The Underlying Facts

The surgeon was the physician on call at the Brandon Regional Health Centre’s Emergency Department in Brandon, Manitoba on November 5, 2015 when the patient was admitted to the hospital. He was the physician most responsible for the patient’s care from November 5, 2015 until November 12, 2015.

The surgeon diagnosed the patient with a gastric volvulus. The treatment plan included an endoscopy procedure to reduce the volvulus, which he performed on November 9, 2015. As expected, it was not successful in completely reducing the volvulus. Following the endoscopy procedure, the surgeon’s plan was for the patient to be stabilized and then to perform a surgical reduction of the volvulus. However, after having been contacted to return to care for the patient shortly after the endoscopy due to complications, the surgeon diagnosed the patient with further conditions, a number of which he treated. The patient was admitted to the ICU.

Over the course of the night, the patient’s condition deteriorated and, at 1:30 a.m. on November 10, the surgeon operated on the patient to repair a previously diagnosed perforation of the stomach and to untwist the gastric volvulus. However, in view of the severe instability of the patient, the surgeon decided not to close the abdominal wound. Instead, he used VAC ABThera (“VAC”) dressing to manage the open incision.

During the surgery, a swab was taken which was positive for various microbes capable of establishing infection, indicating that the patient had likely experienced a significant spillage of gastric contents.

The patient experienced significant continued bleeding after the surgery and required ongoing blood transfusions during the remainder of that day. Later in the day, the surgeon assessed the patient and decided that it was neither necessary nor advisable to return him to the operating room.

In response to concerns about the continued massive bleeding, in the early morning hours of November 12, a surgeon covering for the appellant surgeon performed a further exploratory procedure wherein he noted that there was bleeding coming from the abdomen. After that procedure, he reattached the VAC dressing. His expectation was that the appellant surgeon would conduct a follow-up surgery to address the bleeding. The patient continued to bleed, requiring transfusion of one unit of blood per hour. Blood product availability was becoming a concern.

When the appellant surgeon arrived in the ICU at 8:30 a.m. on November 12, he declined the ICU physician’s request that he defer another patient’s elective Whipple procedure, which he had scheduled for that day, and attend to the patient. Instead, he provided the ICU physician with advice regarding pressure monitoring and manipulation of the VAC dressing.

Another surgeon performed the surgery. The operative report indicated that adequate control of the intra-abdominal bleeding was achieved. Unfortunately, the patient continued to experience the grave effects of multi-organ failure and died on November 20, 2015.

The panel found that a reprimand would not represent adequate punishment or achieve the objectives of specific and general deterrence. To achieve those goals, as well as to maintain the standards and preserve the public’s faith in the medical profession, it held that a suspension was also required. It imposed a penalty approximately midrange of that suggested by the parties.

The court stated in its judgment delivered on January 25, 2022, “To summarize, the panel considered and balanced the objectives of imposing the penalty decision, the mitigating factors, the serious nature of the facts of this case and the authorities submitted by the parties. I have not been persuaded that the panel committed an error in principle or that its decision is so clearly wrong as to yield an unjust result, and I would dismiss this ground of appeal.”

“[The panel] stated that it was fair and reasonable that the appellant pay $85,000, as such an order reflected (a) his responsibility for the inadequate documentation which adversely impacted the investigation of the matters and the conduct of the hearing itself, (b) his responsibility for the $17,000 investigation costs, and (c) the nature and extent of the proven versus unproven allegations. Regarding the last point, the panel noted that, in order to assess the successful charge against the appellant, the panel required evidence in relation to the entire period between November 9 and 12. In my view, the panel carefully considered and weighed the issue of costs. I am not persuaded that it committed a reviewable error, and I would dismiss this ground of appeal.”


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