LOW RISK ????FFFFF???? Every 2-3 cases per 1000 PATIENTS (THIS IS WHAT IS SO- CALLED LOW RISK) !!!!!!!!I AM F**KING APPALED - EVEYBODY CONTEMPLATING LAPAROSCOPIC SURGERY BETTER READ THIS BEFORE YOU’RE SURGEON EITHER MURDERS YOU OF DISABLES YOU FOR LIFE !!!!!!!!!!! Laurion even states that this frequency is underestimated because there would be more cases of thermal injury unreported !!!!!!!!!!!!!!!!! Laparoscopic electrosurgical complications https://canlii.org/fr/qc/qccs/doc/2011/2011qccs5631/2011qccs5631.html THERE IS A BOX ON THE TOP RIGHT - TRANSULATE (TO ENGLISH) https://canlii.org/fr/qc/qccs/doc/2011/2011qccs5631/2011qccs5631.html [42] Dans un article publié dans The American Journal Of Surgery[10] on peut y lire : The mechanical damage of bowel may be perforating or nonperforating, and may be recognized at the time of surgery or become apparent some time postoperatively. Inadvertent instrumental perforation of the bowel is a well-recognized potential complication of laparoscopy. Patients who have had previous abdominal surgery are at a higher risk for these injuries because of the increased likelihood of bowel adhesions to the abdominal wound. The other form of complication relates to the electrothermal burn. Most electrothermal injuries to the bowel (approximately 75%) are unrecognized at the time of occurrence. The result of an unrecognized bowel injury is usually serious, often leading to long-term complications. The small bowel, especially the ileum, is most frequently involved, and the injury may not cause clear-cut or rapid symptoms and abnormal laboratory values. Generally speaking, symptoms of bowel perforation following electrothermal injury are usually seen 4 to 10 days after the procedure. With direct traumatic perforation, symptoms usually occur within 12 to 36 hours, although their occurrence up to 11 days later has been reported. The time delay from burn to perforation would appear to be related to the severity of the coagulation necrosis. Different types of injury result in different clinical manifestations. […] Electrothermal burns during laparoscopy can be prevented or at least minimized with thorough preparation and training of the operating room staff, and regular equipment maintenance. The surgeons hand-eye coordination using these instruments during laparoscopy is the most obvious and crucial factor. It is also important, however, that the rest of the surgical team, including the perioperative nurses, biomedical engineer, anesthesiologists, and assitants have a thorough knowledge of the biophysics of the equipment being used so they undestand how it is to the equipment being used so they understand how it is to be handled and the inherent risks associated with its use. (Soulignements ajoutés) [43] Le Dr Philip H. Gordon dans son traité Principles and Practice of Surgery for the Côlon, Rectum, and Anus[11] écrit : Unwanted leakage of current is unavoidable when working with high-frequency currents. Thus current leakage is present during all types of electrosurgical procedures. Even though the snare wire is insulated, high-frequency current actually leaks through the insulation. This phenomenon by which high-frequency currents apparently leak across insulators and out of wires is called capacitive coupling. These currents can and have caused burns to both the endoscopist and the patient. Burns and shocks to the physicians eyes or hands are possible if the current density at the point of tissue-to-metal contact is great enough. […] Electrosurgical injuries can occur, particularly during laparoscopic operations, and are potentially serious. The main causes of electrosurgical injuries are inadvertent touching or grasping of tissue during current application, direct coupling (unintended contact) between a portion of intestine and a metal probe that is touching the activated probe, insulation breaks in the electrodes, direct sparking to the intestine from the electrocautery probe, and current passage to the intestine from recently coagulated, electrically isolated tissue, The majority of injuries are caused by monopolar electrocautery. (Soulignements ajoutés) Paquin c. Charlebois, 2011 QCCS 5631 (CanLII) Date : 2011-10-17 (Dossier : 500-17-047694-099) Autres citations : EYB 2011-197451; [2011] JQ no 15407 Référence : Paquin c. Charlebois, 2011 QCCS 5631 (CanLII), consulté le 2014-10-25 [ 41 ] Finally, the medical literature reported a risk of thermal injury to the bowel during a laparoscopic surgery which may lead to peritonitis. The risk is low but it is present. It is estimated at 2-3 cases per 1000 patient cohort. Laurion even states that this frequency is underestimated because there would be more cases of thermal injury unreported (FROM THE BEGINNING) Paquin c. Charlebois, 2011 QCCS 5631 (CanLII) Date: 2011-10-17 (File: 500-17-047694-099) Other quotes: EYB 2011-197451; [2011] QJ No. 15407 Reference: Paquin c. Charlebois, 2011 QCCS 5631 (CanLII) < canlii.ca/t/fnlhc > retrieved on 2014-10-25 • Cited by 2 records • View summary • PDF • E-mail • Tweet • Share Hide Visit CanLII • Log - summaries and reviews of the legal community on Selected Decisions Legislation cited (available on CanLII) • Civil Code of Québec , c C-RLRQ 1991 - 1205 ; 1238 ; 1242 Cases cited • [Title unknown] [1979] RJQ 567 (not available on CanLII) • [Title unknown] , 67 BR 328 (not available on CanLII) • [Title unknown] , EYB 1995-72332 (not available on CanLII) • [Title unknown] , [1987] RRA 409 (not available on CanLII) • [Title unknown] , EYB 1979-135933 (not available on CanLII) • Cloutier v. Hospital the hospital Laval University , 1990 CanLII 3404 (QC CA) • Lapointe c. Le Gardeur , [1992] 1 SCR 351, 1992 CanLII 119 (SCC) • Martel v. Hôtel-Dieu St-Vallier , [1969] SCR 745, 1969 CanLII 3 (SCC) • Nencioni c. Mailloux and others , 500-05-001858-791 1984-10-10 (not available on CanLII) • PL c. Benchetrit , 2010 QCCA 1505 (CanLII) • Roberge v. Bolduc , [1991] 1 SCR 374, 1991 CanLII 83 (SCC) • St John c. Mercier , [2002] 1 SCR 491, 2002 SCC 15 (CanLII) • Tremblay c. Claveau , [1990] RRA 268 (not available on CanLII) • Vigneault c. Mathieu , 1991 CanLII 2994 (QC CA) • Wilson v. Swanson , [1956] SCR 804, 1956 CanLII 1 (SCC) Paquin c. Charlebois 2011 QCCS 5631 JD-1879 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT MONTREAL No.: 500-17-047694-099 DATE: October 17, 2011 ______________________________________________________________________ IN THE CHAIR: THE HONOURABLE WILBROD CLAUDE DÉCARIE, JCS ______________________________________________________________________ JEAN-CLAUDE Paquin Applicant c. DR PATRICK CHARLEBOIS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] M. Jean-Claude Paquin continues medical malpractice Dr. Patrick Charlebois. He claims his $ 90,000 representing the damage it has suffered as a result of perforation of the bowel during a segmental resection of the left colon. [ 2 ] Charlebois disputes the claim. According to him, he did not commit malpractice. He argued that the complication occurred after surgery is a risk inherent in this type of surgery. I. BACKGROUND [ 3 ] Charlebois is a specialist in colorectal surgery at the Montreal General Hospital since 2003. Everyone agrees that this is a highly qualified and skilled surgeon in his field. [ 4 ] On 28 March 2006, Paquin arrives at the Notre-Dame Hospital to undergo complete colonoscopy. The procedure is performed by Dr. Benedict Panzini. [ 5 ] The colonoscopy is performed to the hepatic flexure. Panzini can not go further. In his review, he finds a sessile villous lesion at 70 cm from the anal margin. It performs a partial resection of the lesion for analysis. The histopathological report revealed the presence of a villous adenoma-Benin. [ 6 ] On June 9 Panzini conducts a second colonoscopy. This time he managed to get to the transverse colon. He noted the presence of a sessile villous polyp that is 45 cm from the anal margin and probably located at the splenic flexure. The tumor is, according to him, unresectable by endoscopy. Panzini therefore refers to Dr. Paquin Herawaty Sebajang specialist in general surgery at the Notre-Dame Hospital. [ 7 ] Do not know Sebajang, joint Paquin contact Charlebois, a family friend, a specialist in colorectal surgery. [ 8 ] On September 6, Paquin Charlebois meeting with test results done by Panzini. Charlebois agrees that Panzini. Segmental resection of the colon, that is to say the removal of a portion thereof, is necessary. [ 9 ] On 12 September, revises Paquin Charlebois for a total colonoscopy. During the speech, he notes the presence of a sessile polyp in splenic he can not remove. It then proceeds to the tattooed periphery of the tumor to be able to locate it at the next surgical procedure. [ 10 ] Prior to surgery, Paquin Charlebois inform certain complications inherent in the proposed procedure. This has included the risk of developing an infection but did not inform a risk of bowel perforation by thermal burn. It is accepted that if Paquin had been informed of the very low risk of perforation by thermal injury, it would still have consented to surgery. [ 11 ] On October 6, Paquin was admitted to the Montreal General Hospital to undergo assisted laparoscopic left hemicolectomy. During this surgery, doctors Charlebois is assisted K. Hsu and K. Qasem. Hsu is a surgeon who specializes in laparoscopic surgery. Qasem is a senior resident in surgery. [ 12 ] Using the method of Hasson Charlebois foam inserts a laparoscopic trocar within the patients abdomen. Then it creates a pneumoperitoneum gas by injecting CO 2 pressure in the abdominal cavity. This procedure is used to inflate the cavity and create a wider operative field. [ 13 ] Once established pneumoperitoneum Charlebois inserted through the trocar, a camera to make an initial assessment. It is at this point that Charlebois found that the colon Paquin is redundant. [ 14 ] Once the assessment is completed, Charlebois trocars inserted four metal work sharp points. These trocars allow the surgeon to insert surgical instruments to manipulate and dissect the colon within the abdomen. [ 15 ] During this phase of the intervention, Charlebois and Hsu use multiple instruments, including forceps and scissors types. The clamps are used to manipulate the intestine within the abdominal cavity and the scissors to mobilize the colon at places little irrigated by blood vessels. When the surgeon dissects the colon near the splenic flexure, a highly vascularized part, it must abandon the chisel to use a monopolar cautery hook to avoid bleeding. This last instrument that is at the heart of the dispute. It is an electrified instrument burning tissue loose from the wall and heals, thereby preventing bleeding. The electric current of the instrument is activated by the surgeon using a footswitch. [ 16 ] Once the left colon detached from the abdominal wall, Charlebois an incision in the abdomen and the colon exits outside thereof for severing and removing the portion where the polyp is located. Then it reconnects the two sections of the colon and replace it into the abdominal cavity. [ 17 ] Before concluding Charlebois made a careful inspection of the interior of the abdomen. Noting that everything is normal, he removes the trocar and suture the incisions. [ 18 ] The operation goes well and the operating protocol prepared by Hsu describes no particular incident. [ 19 ] The evaluation notes 7, 8 and 9 October Paquin shows that normally recovers and is discharged. [ 20 ] On 13 October, Paquin arrives at CLSC du CSSS Summit for removing surgical staples. Thats when he complained to the nurse of increased abdominal pain for 48 hours. [ 21 ] During the afternoon, an examination of the abdomen using a CT scan is performed. It reveals a large pneumoperitoneum with a little liquid and a major infiltration around the left colon. The findings suggest the possibility of a bowel perforation or anastomotic leak. [ 22 ] Given the urgency of the situation, Paquin is then transferred to the Montreal General where he was admitted under the care of Dr David Owen Hospital. [ 23 ] Upon his arrival, another review to carried out using a CT scanner. It reveals the presence of a significant amount of air inside and outside the presence of peritoneal with extravasation of dye near the site of the anastomosis sigmoid. [ 24 ] The next day, Owen makes a perforated resection of the left colon with proximal colostomy and closure of distal segment end. [ 25 ] The handwritten operative note, the operative report and the pathologists report described a perforation of 1.2 X 0.7 cm located about ten centimeters upstream of the sigmoid anastomosis. [ 26 ] It is recognized that it is likely that this perforation was caused by thermal injury occurred during the procedure performed by Charlebois. II. ISSUE [ 27 ] The bowel perforation is recognized as the causal link between the alleged misconduct and the damage. The only issue is: Charlebois he followed the rules of art? III. ANALYSIS AND DISCUSSION a) The applicable law [ 28 ] Anyone who invokes the liability of a third party must, to succeed, to prove three things: the fault of others, injury and causal link between the negligence and the injury. The situation is no different when we invoke the professional responsibility of a health professional. [ 29 ] What is the standard the court should use to determine whether a health professional was at fault? To answer this question, the court endorsed the following lessons Ms. Claire LHeureux-Dubé J. in Lapointe v. Hôpital le Gardeur [1] . Professional liability principles of ordinary civil liability. Generally, doctors have an obligation of means and their conduct must be assessed in relation to the conduct of a prudent and diligent doctor in the same circumstances. According to Professor Paul-André Crépeau fundamental in his article entitled Liability of the physician (1977), 8 RDUS 25, pp. 28 and 29: The doctor, unless expressly stated otherwise, is imposed, according to a classification now generally accepted, an obligation of means, that is to say, the obligation to provide, and affirmed the Court of Cassation in 1936 in the case of Mercier cautious, careful and conscientious care, and subject to exceptional circumstances in accordance with what the science . And such appreciation should be an obligation, not on a subjective basis, in concrete by, for example, if the debtor has done his best, but according to an objective criterion, in the abstract , in wondering what would have done in such cases, a prudent and diligent doctor in similar circumstances . Commenting on the concept of fault applicable to health professionals, A. and R. Kouri Bernardot write in Medical Liability (1980), at p. 12: We must therefore hold as a general rule the principle of assessment in the abstract . For this it is necessary to assess the attitude of a person charged in relation to that would have had in the same circumstances of time and place, a good professional. Who is this good business? This is a prudent and diligent individual placed in the same conditions as the agent in question in court. Thus, if a doctor is sued, we ask what would have been a prudent and diligent doctor . For an analysis of the case law and doctrine, see our recent decision Roberge v. Bolduc, 1991 CanLII 83 (SCC) , [1991] 1 SCR 374 , at pp. 393 et seq. Quebec courts have consistently applied these principles. In the judgment X . v. Mellen , [1957] QB 389, the Quebec Court of Appeal ruled that physicians have an obligation. Similarly, in the judgment of the General Hospital area Asbestos Inc. v. Perron , reflex , [1979] AC 567, Lajoie JA of the Court of Appeal wrote at p. 574: Generally, the doctor and the hospital did not owe a duty to the patient result means, that is to say a duty of care and diligence and infringement must be assessed not subjectively in wondering if the author of an act or omission done his best, but from an objective criterion, abstract, which is for the Tribunal to wonder what would have done in this case another doctor Another specialist, another nurse, science, skill and ordinary and reasonable skill, placed in similar circumstances to those in which was the one whose conduct is to be judged. See also: T remblay c. Claveau , reflex , [1990] RRA 268 (CA), at p. 271; Cloutier c. Hospital Hospital Center of Laval University (CHUL), 1990 CanLII 3404 (QC CA) , [1990] RJQ 717 (CA), at p. 721; Vigneault and c. Mathieu, 1991 CanLII 2994 (QC CA) , [1991] 1607 RJQ (CA), at pp. 1614 and 1615. As stated in the judgment of the General Hospital area Asbestos, courts must take care not to rely on the perfect vision of hindsight. To fairly evaluate a particular exercise of judgment must reflect the limited ability of the physician in deciding how to behave, to predict the course of events. Otherwise, the doctor will not be evaluated according to the standards of a doctor reasonable ability in the same circumstances, but rather will be held responsible for errors that are apparent only after the fact. Doctrine and jurisprudence show that health professionals should not be held liable for mere errors of judgment, which are distinct from the malpractice. According to Hyde judge in Case X. c. Mellen , supra, at p. 406: [ TRANSLATION ] The surgeon should certainly not be judged based on the result or be sentenced to a mere error in judgment . However, according to the Rand J. in Wilson v. Swanson [ 1956 CanLII 1 (SCC) , [1956] SCR 804, at p. 812], we must distinguish this error a clumsy gesture or resulting from a lack of attention or knowledge. This analysis was confirmed by this Court in Martel v. Hôtel-Dieu St-Vallier , 1969 CanLII 3 (SCC) , [1969] SCR 745; see also Cloutier, supra, at p. 721. Given the number of possible methods of treatment between which health professionals must sometimes choose and the distinction between error and fault, a doctor will not be held responsible if the diagnosis and treatment of the patient correspond to those recognized by medical science at the time, even in the presence of competing theories. As expressed more eloquently, André Nadeau in Medical Liability (1946), 6 R. du B. 153, at p. 155: The courts do not have jurisdiction to settle scientific disputes among divergent opinions of physicians on certain topics. They can not find fault only when there is a violation of the accepted rules of medicine. The courts have nothing to do with the controversial questions of assessment diagnosis or give preference to a particular treatment. Or, as summarized in Brossard J. in Nencioni c. Mailloux , reflex , [1985] RL 532 (SC), at p. 548: ... It is not for the Court to make a choice between two schools of scientific thought, when these two schools also seem reasonable one than the other and both are based on the writings and scientific texts ... [2] (emphasis added) [ 30 ] As we are reminded Mr. Justice Charles Gonthier J. in St-Jean v. Mercier [3] , care must be taken during the analysis, not to substitute the requirement means that is the standard by an obligation of result. The court shall not consider whether the health professional was at fault, but if he acted according to the rules of the art in patient treatment. Mr. Justice Gonthier says: [52] She blames Judge Morin for having asked the wrong question to determine whether a foul was committed and therefore applied the wrong standard in assessing the conduct of the respondent. According to the Court of Appeal, instead of whether the respondent had committed a mistake by not diagnosing or badly diagnosing spinal cord contusion and fracture-dislocation to D8 and D9, Judge Morin should have asked if Respondent had acted according to the rules of the art in the treatment of the patient. The Court of Appeal essentially stated that the question at issue should be formulated in general terms as the relevant standard of conduct for the analysis of fault Quebec civil law, instead of incorporating the specific facts of the case. [53] To determine whether a professional was at fault, it must be asked whether the defendant behaved like any other professional reasonably prudent and diligent in the same circumstances (J.-L. Baudouin and P. Deslauriers , Liability (5th ed. 1998) p. 850). Wonder mainly in the general inquiry, if a given act or omission constitutes a fault is reducing risk analysis and to sow confusion. What must be asked is whether the act or omission constitutes acceptable behavior for a reasonably prudent and diligent professional in the same circumstances. The wrong approach may focus on the result rather than the means. The professional has an obligation of means and not of results. [4] [ 31 ] Until recently these principles have been reiterated in the judgment PL c. Benchetrit [5] where Judge Yves-Marie Morissette wrote: [44] The purpose of a medical procedure is often therapeutic (healing the patient, to improve its condition, stabilize or prevent the deterioration) although it may be of a different order, as is the case here where the purpose is aesthetic (improve the appearance of the patient). If hindsight is worn on the professional conduct of a physician, based only on its purpose, all unsuccessful medical procedure, especially if it is followed by a medical procedure that achieved its goal because it was attainable, results in a sense of a mistake. The standard error in this case, is the success of treatment or intervention, and it is normal that medical science takes to identify these errors because the understanding of past treatment failures can discover their causes and increase the likelihood of future success. We see immediately, however, that such reasoning has no place in the law of civil liability: in principle [28], the physicians obligation is one of means, not of results, and stallion of the offending error is rather that the rules of art, good professional practice [29] of a competent physician, careful and diligent . However, when considering the jurisprudence that has accredited the notion of mere error of judgment - and in the first stop Lapointe v. Hôpital Le Gardeur - we see that it is usually described as medical interventions error because it describes retrospectively according to their therapeutic failure. The law of professional responsibility, meanwhile, must take into account the fact that, despite all the precautions taken by medical science, the work of the physician is complex to varying degrees, empirical and random. When medical intervention does not give the desired because the state of the art face this incompressible margin fortuity inherent in medical practice result, it can not give rise to liability for the physician who has complied with these rules and therefore committed no fault . (Underlining added) [ 32 ] In the case of Hartley v. Novick [6] Mr. Justice André Rochon, now the Court of Appeal succinctly stated the principles as follows: Medical liability has been the subject of many studies and the decisions of our courts are not lacking. Counsel for the parties have also flooded the Tribunal of this scholarly literature. Suffice it to recall briefly, to the extent possible, the basic principles. 1) The obligation of the physician is an obligation of means and not of results. 2) It is for anyone seeking a doctor for damages to prove fault. 3) In this regard, a direct proof of fault is not necessary. Proof by presumption is reversed not sufficient. 4) error, negligence and recklessness are however generating faults liability if it was breached the rules of the profession or medical science, if the doctor wanted done or omitted that n would not have done or omitted a physician with a normal science among the members of his profession (Nelligan v. Clement (1939) reflex , 67 BR 328). 5) In deciding whether there is a fault, a judge can not be based on personal opinion against that of experts. Rather, it must determine whether the act was consistent with the medical practice of the time. 6) We must distinguish between negligence and misjudgment caused by ignorance of the facts that the doctor could not know. Negligence resulting liability, but not similar misjudgment 1 (Wilson v. Swanson, 1956 CanLII 1 (SCC) , [ 1956 ] SCR 804). In sum, any error is not necessarily a fault. [7] [ 33 ] examine the conduct of Charlebois in the light of these principles. b) Dr. Charlebois he followed the rules of art ? i) The proof by presumptions [ 34 ] It is sometimes difficult for the victim of a medical error to make direct evidence. It must then have recourse to the proof by presumptions of fact. In the judgment of the General Hospital area Asbestos Inc. v. Perron [8] Mr. Lajoie JA then sets out principles apply: [57] Thus, to reduce this obstacle that justice, the courts have in the absence of direct evidence of serious misconduct, eased the burden of the victim and easier to find the responsible for the use the proof by presumptions of fact. The Article 1205 of the Civil Code says that the proof can be made by presumptions and Section 1238 adds that the presumptions arise from facts at the discretion of the court. See also the section in 1242 . [58] it is a mixed application of res ipsa loquitur maxim; when an adverse event occurs which in the normal course of things should not happen unless there is negligence, the court may conclude that alleged negligence until the opposing party has satisfied that it was not at fault. Once proven that the harmful product would not in the ordinary course of life if there was no negligence, it is up to the hospital and the physician to demonstrate that tort occurred without the fault from them or their agents, or could not be prevented by reasonable means. [59] The rules of evidence do not require hospital or doctor continued to bear the consequences, risks and the inevitable vagaries of the activity of their own, they did not demonstrate the cause of the injury or unpredictable or uncontrollable, but only that they acted with science character, skill, diligence and prudence and according to generally accepted standards. [ 35 ] Citing the judge-made rule, Paquin submit a bowel perforation by thermal injury should not occur during a surgery of this kind unless there has been negligence. Perforation thermal burns being admitted, the court shall, according to him, alleged that there was negligence. It is then shown that this Charlebois perforation occurred without fault on his part or that it could not be prevented by reasonable means. [ 36 ] For this presumption applies, a prerequisite is required. Must demonstrate that the injurious would not have occurred in the ordinary course of life. The question the court must answer is this: Paquin he managed to demonstrate that the perforation of the bowel during a laparoscopic colon surgery is an event that does not occur? [ 37 ] Both experts agree that this kind of event can occur. Laurion wrote in his report: The use of either monopolar cautery hook is quite acceptable but carries the risk of thermal burn trauma: - By accidental contact between the tip of the instrument and surrounding viscera (gut); - By leakage current between the tip of the instrument and a neighboring organ (electric arc); - By current leakage event of a failure of the protective sheath of the hook (arc); - Or by accidental contact between the tip of the instrument and another metal instrument; - By accidental contact between the instrument and a metal trocar or the lens that come in contact with an adjacent organ (capacitance). This type of thermal injury may be invisible during the procedure, causing a deep injury or transmural to a neighboring organ including the intestine and become clinically evident several days later. In the case of the intestine, this may cause burning after 5 to 7 days, with transmural perforation or abscess formation and local contamination with generalized peritonitis. [ 38 ] He however concludes: The thermal burn injuries are not part of the surgical technique and are not part of the risks of surgery performed. It is the responsibility of the surgeon to avoid this kind of trauma. [ 39 ] As against evidence, he admits that even if a surgeon strictly follow the rules of the art, this type of burn can happen. He added that unfortunately a technical foul of this kind can also go unnoticed and lead to complications . It also specifies that what happened during the surgery performed on Paquin should not be obvious since Charlebois and members of his medical team did not realize in. He adds in the same breath that you can hardly blame him for not taking appropriate corrective action if the burn has gone unnoticed. [ 40 ] Dr. Jean-François Latulipe, expert of the defendant, mentions the existence of a risk of thermal injury during surgery with laparoscopy. It expresses [9] : The complication noted in the second surgery, intestinal perforation, is part of the risks of abdominal surgery, whether open or laparoscopic. The medical literature contains numerous studies that attest to the effectiveness and safety of the laparoscopic approach when compared with the open approach. But there are some complications that are more spécificques laparoscopy. The creation of pneumoperitoneum is such a risk. The risk of electrical burns is another. Indeed, whether open or laparoscopic surgery, the use of electrocautery is common to facilitate the dissection while minimizing blood loss. However, the use of instruments of conductors within the abdominal cavity exposed to the abdominal viscera of complications that can be found to a lesser extent in open surgery due to the much more dangerous arcing training in laparoscopic surgery. The medical literature suggests that the risk of secondary trauma electrosurgery is very low at 2-3 per 1,000 surgeries (0.2-0.3%). Thus, despite all precautions the surgeon (mentioned in the previous section), the electric current can sometimes cause damage to adjacent organs or body that is mobilized, despite a surgical technique to standard. The risk of thermal injury to the secondary electrical current is associated with the same use electrosurgical instruments. The risk is inherent in their use. [ 41 ] Finally, the medical literature reported a risk of thermal injury to the bowel during a laparoscopic surgery which may lead to peritonitis. The risk is low but it is present. It is estimated at 2-3 cases per 1000 patient cohort. Laurion even states that this frequency is underestimated because there would be more cases of thermal injury unreported. [ 42 ] In an article published in The American Journal Of Surgery [10] we can read: The mechanical damage of bowel perforating May Be nonperforating gold, and May Be reconnu at the time of surgery or apparent Become Some Time postoperatively. Inadvertent instrumental perforation of the bowel is a well-recognized potential complication of laparoscopy. Patients Who-have HAD previous abdominal surgery are at risk for a Higher thesis cursing Increased Because of the likelihood of bowel adhesions to the abdominal wound. Lautre form of complication Relates to the Electrothermal burn. Most Electrothermal cursing to the bowel (Approximately 75%) are unrecognized at the time of occurrence. The result of unrecognized bowel injury year is serious Usually, Often leading to long-term complications . The small bowel, the ileum Especially, is MOST Frequently Involved, and the injury due May not clear-cut or rapid symptoms and abnormal laboratory values. Generally speaking, symptoms of bowel perforation Following Electrothermal injury are seen Usually 4 to 10 days after the procedure . Live with traumatic perforation, symptoms Usually Occur Within 12 to 36 hours, ALTHOUGH Their occurrence up to 11 days later has-been reported. The time delay from burn to perforation Would APPEAR To Be related to the severity of the coagulation necrosis. Different kinds of injury result in different clinical manifestations. [...] Electrothermal burns Pendant Can Be Prevented laparoscopy or at least minimized with Thorough preparation and training of the operating room staff, and regular equipment maintenance. The surgeons hand-eye coordination thesis using laparoscopy instruments Pendant is The Most Obvious and crucial factor. It est aussi important HOWEVER, that the rest of the surgical team, the perioperative Including nurses, biomedical engineer, anesthesiologists, and assitants-have a Thorough knowledge of the biophysics of the equipment being white Used So They undestand how it is to the equipment being white Used So They Understand how it is To Be Handled and the inherent Risks Associated with ict use. (Underlining added) [ 43 ] Dr. Philip H. Gordon in his treatise Principles and Practice of Surgery for the Colon, Rectum, and Anus [11] wrote: Unwanted leakage of current is Unavoidable When working with high-frequency currents. THUS leakage current is present DURING all kinds of electrosurgical procedures. Even though the snare wire is insulated, high-frequency current leaks through the insulation Actually. This phenomenon by All which high-frequency currents Apparently leak across insulators and wires out of sintitule capacitive coupling. These currents can and burns to-have Caused Both the endoscopist and the patient . Burns and shocks to the physicians eyes or hands are possible, if the current density at the dot of tissue-to-metal contacts is great enough. [...] Electrosurgical cursing can Occur, PARTICULARLY DURING laparoscopic operations, and are Potentially serious . The main causes of electrosurgical cursing are inadvertent touching or grasping of tissue Pendant current implementation, direct coupling (unintended contact) entre a portion of intestine and a metal probe That is touching the activated probe, insulation breaks in the electrodes, direct to the sparking turf from the electrocautery probe, and current passing to the intestine from Coagulated Recently, electrically isolated tissue, majorité The cursing of monopolar electrocautery are Caused by . (Underlining added) [ 44 ] In summary, the literature teaches that leakage current from an instrument like the cautery causing harm can and do occur during laparoscopic surgery and that even without the knowledge of the surgeon. [ 45 ] The measures suggested to avoid such burns, which measures are recognized as part of the rules of art, designed to minimize, not eliminate them completely. [ 46 ] The bowel perforation by thermal burn is a risk associated with this type of surgery, Paquin has failed, in the opinion of the court, to show that this type of incident does not occur in the normal course of things. It therefore can not benefit from the presumption of fact and invokes the reversal of the burden of proof that accompanies it. [ 47 ] In support of his claims, Paquin invites the Court to walk in the same direction as the judges Trudel and Rochon in business Beauchesne v. Ladouceur [12] and Hartley v. Nosvick [13] . These two decisions are not applicable in this case. In both cases, the World literature reported no case may resemble the situation faced by the victims. This is not the case here. [ 48 ] That being said, we must now examine the evidence to determine whether there is direct evidence of the alleged negligence of Charlebois. ii. Direct evidence [ 49 ] In his report, Laurion quickly concluded the responsibility of Charlebois and without knowing his story. He writes on page 9 of the report [14] : Mr. Paquin underwent segmental resection of the left colon assisted laparoscopic. The indication for surgery is well established. The choice of the appropriate surgery. Disclosure of the risks inherent in this type of intervention is not found in the documents consulted. Colonic perforation that Mr. Paquin suffered during the initial surgery, results in all probability, an unknown thermal injury during surgery. Dr. Patrick Charlebois has made a professional error causing this intestinal trauma. [ 50 ] In the opinion of the court and with respect for Laurion, it is wrong. Indeed, it addresses the issue of the conduct of Charlebois focusing on the outcome rather than the means. [ 51 ] At the hearing, Laurion changes course to reflect a theory that does not appear in its report [15] . This is the theory of prolonged and intimate contact with cautery of the colon. According to him, the size of the observed in intestinal perforation pathology report is 1.2 X 0.7 cm and it is located 10 cm above the anastomosis. As the specimen had stayed in formalin [16] , it evaluates the size of the perforation approximately 1.5 X 1 cm. Laurion is of the view that thermal injury causing perforation of the intestine was at least the same size. It is therefore an injury to impressive size when compared to that caused by an electric arc which is only 1 to 2 mm. It is a third degree burn that does not go unnoticed because it leaves a white mark of the same size on the walls of the intestine. [ 52 ] It is a step further and says that the thermal injury occurred during mobilization of the transverse colon, which was attached to the descending colon at the splenic flexure. He stated that obviously escaped this burning Charlebois and his team because Charlebois intervened to correct the situation by appropriate action if the incident was noticed. [ 53 ] concluded Laurion, using these assumptions, Charlebois has lost sight for about two seconds while the cautery was activated and the colon, which constitutes professional misconduct. Indeed, it is admitted by all the rules of art require that the surgeon always keeps the instruments in the field of the camera. In addition, it should enable the cautery when the tip of it is visible in direct contact with the tissues to dissect. [ 54 ] This is an interesting hypothesis. Indeed, if reported to the procedure of such an incident or if a member of the medical team stated that such a move was made, the court would not hesitate to conclude that the malpractice. But nothing like this has been proven. Despite it looking its reasoning. [ 55 ] The first premise of the reasoning Laurion is to the effect that thermal injury is necessarily the same size as the hole discovered in the analysis of the specimen by the pathologist. Further affirmation of Laurion, nothing in the evidence to support this statement. Laurion even recognize that there is no scientific study establishing a balance between the size of a perforation and the importance of trauma to its origin. [ 56 ] Furthermore, there is conflicting evidence on this issue. Indeed, Latulipe mentioned during his testimony that several factors may have an impact on the final size of the perforation, namely: • the inflammatory response of the human body; • the gradual passage of stool through the orifice; • the operations performed during performed by Dr. Owen surgery [17] ; • specimen manipulation following the surgery. [ 57 ] According to him, the size of the perforation discovered during the analysis of the specimen has nothing to do with the size of the thermal injury inflicted during the procedure. There is no match between the size of the perforation and the importance of the trauma that caused it. [ 58 ] The second premise of the argument of Laurion is to the effect that the bowel perforation resulting from an intimate and prolonged contact with cautery of the colon. Again this assumption is not supported by any direct evidence. In addition, it is based on the first premise is not supported by the evidence. Laurion in effect, that an intimate and prolonged contact with cautery of the colon because it assumes that the size of the perforation found at pathological examination necessarily correspond to the size of the initial trauma. [ 59 ] If we can not conclude that the burn was the same size as the hole, we can not draw any conclusion as to the duration of contact between the cautery and colon. This data remains and will remain unknown. Laurion conclude as does the contact was extended because the perforation was important is speculative and not evidence. [ 60 ] Finally, direct evidence makes it unlikely that assumption. In fact, again according Laurion, prolonged cautery between the colon and a two-second contact creates a third degree burn. A burn of this magnitude is manifested by a characteristic white spot which, according to his hypothesis, has a size of at least 1.5 X 1 cm, which is considerable. Or Charlebois testified that he left the abdomen portion of the colon is where Laurion thermal burn after mobilization. This part of the colon was examined and probed in search of the polyp. Nobody then found the presence of a thermal burn. [ 61 ] Given that the medical team found no thermal injury to the colon and did not see the gesture, which is in its origin, it may be presumed that it was not easily visible to a trained eye to sort of thing. If it was not visible to Charlebois and his team, it is likely that it was much less than is claimed Laurion. [ 62 ] As the premise of Laurion reasoning is not based on the evidence, his conclusion is flawed. Despite this let us examine briefly. [ 63 ] concluded that Laurion Charlebois did not keep the tip of the cautery in his vision for a period of two seconds when it was activated, which goes against all the rules of art. In the courts view, this conclusion is highly unlikely and disregarded important evidence. [ 64 ] Like all have pointed out, the fact that a surgeon working in the dark is a rookie mistake. It is therefore unlikely that a surgeon with the skill Charlebois has lost sight of for a long time the tip of his instrument. [ 65 ] In addition, while two surgeons and a resident closely involved in the operation, the operating protocol written by Hsu made no mention of a cautery activation outside the field of vision or prolonged application and intimate one on colon. [ 66 ] Finally, at his uncontradicted testimony, Charlebois says he is well aware of the danger of thermal burns and takes appropriate precautions. He applied at the Paquin intervention on the principles he teaches students which provides training, namely: i) he used a low current; ii) it has active cautery tip when the latter was visible to the monitor; iii) it is the only one who handled the cautery; iv) it is the only one who activated the cautery; v) he slightly pulled away from the tissues to the colon before dissection. [ 67 ] Adopting the theory of Laurion require the court to conclude that all team members have had a moment of distraction at the same time. This is unlikely. [ 68 ] As the case Houde . c Roberge [18] has some similarity to the present case, the court endorsed the following about Mr. Judge Simard: As the defendant himself recognized surgeon, he had already practiced 900-1000 similar interventions without encountering this kind of complication . It was established that he used and still uses the same surgical technique in all cases, including that of the plaintiff. This technique, as we have seen, is not objectionable. The learned counsel for the plaintiff admits, moreover, that the technique used was correct, it was, in fact, comply with the rules of art, but he argues that there was error, negligence or wrong move in use. Without a fault, what happened would not have happened gesture. Usually, it does not puncture the aorta is when the removal of a disk. Its nonsense is he exclaim. This is a seductive argument, but it is specious, in my opinion. Any damage is not necessarily connected to a fault. Fortuitous event, force majeure and the inherent risk, among others, are exculpatory. If one is following the rules of the art, as is admitted in this case, it does not commit a foul. In fact, whenever there is fault, it departs, it violates the rules of art. (...) Should we make a difference between the complication arising from the technical and that caused by a metabolic reaction, as argued by counsel for the plaintiff? I do not believe. The intervention is as much art as surgery. The two are inseparable. If the surgeon takes the resources that are available on the market, to use a common expression, if it does not commit an offense in the use of these means, he has done his duty and can not be held responsible for damage caused by his medical procedure. This is called an inherent risk of surgery and the poor hapless patient must bear the consequences alone. [19] [ 69 ] In conclusion, the argument presented by Paquin is attractive, but it is based on assumptions whose foundations are not supported by the evidence. Faced with this uncertainty about the circumstances surrounding the thermal injury to the bowel Paquin, the court can not infer that the result of behavior that is contrary to the rules of art. [ 70 ] Given the conflicting evidence, the court must conclude that Paquin failed to prove, on the balance of probabilities that Charlebois has not taken steps that would have taken another professional reasonably prudent and diligent in the same circumstances. V. CONCLUSION [ 71 ] The court feels much sympathy Paquin for all the misfortunes that followed his surgery. If a decision could be based on such sentiments, the court would not hesitate to agree with him. Unfortunately this is not possible. [ 72 ] For cons, the court may mitigate the costs. Although he dismissed the motion with costs, they do not include the defendants expert fees. FOR THESE REASONS, THE COURT: [ 73 ] DENIES the motion of the applicant; [ 74 ] WITH COSTS . __________________________________ WILBROD CLAUDE DÉCARIE, JCS Mr. Richard Dufour Stéphanie Chartray (Trainee) DUFOUR, MOTTET LAWYERS The plaintiffs attorney Stéphane Tremblay Antoine Me Begin MCCARTHY TÉTRAULT Solicitors for the defendant Date of hearing: 20 and 21 September 2011. ________________________________________ [1] 1992 CanLII 119 (SCC) , [1992] 1 SCR 351. [2] Idem, pp. 361-364. [3] 2002 SCC 15 (CanLII) , [2002] 1 SCR 491. [4] Idem, p. 511. [5] 2010 QCCA 1505 (CanLII) . [6] reflex , EYB 1995-72332, CS [7] Idem pp. 5 and 6. [8] reflex , EYB 1979-135933, CA [9] Exhibit D-7, p. 3. [10] Volume 179, January 2006, D-11, p. 70. [11] Exhibit D-10, p. 178. [12] CS 500-05-044184-982. [13] op.cit. Note 6. [14] Exhibit P-6. [15] The court is also surprising that Laurion, while he was holding all the necessary data to do so, does not mention this hypothesis in his report. [16] Formaldehyde has the effect of shrinking the tissue. [17] The court pause here. It is interesting to note that Laurion in against evidence, expressed the view that one can claim that the size of the perforation could be modified during the second surgery or when handling the specimen as claimed Latulipe. His assertion is based on the fact that the operative protocol Owen and the pathologists report does not indicate an alteration of the size of the perforation during surgery or when handling the specimen. Since it is not mentioned in these documents, it does not happen. Why does not he apply the same reasoning in its analysis of the record of Paquin. With such reasoning one might expect it concludes that since the test procedure does not mention an intimate and prolonged contact with cautery of the colon during the procedure is that it was too short or burn too small to be observed. Instead, he finds a lack of starting from Charlebois although the operating protocol is silent in this regard. [18] SLR 1987 RRA 409, CS [19] Idem, pp. 412-413.
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