Bariatric Surgery Claim Dismissed (Cooper v. Valiulis)

Bariatric Surgery Claim Dismissed (Cooper v. Valiulis)


The Ontario Superior Court of Justice recently released the decision in Cooper v. Valiulis, 2012 ONSC 664.  The plaintiff, represented by Robert Durante of Oatley, Vigmond and Gayle Brock, claimed that the defendant, Dr. Algis Valiulis, was liable for determining that she was an appropriate candidate for revision bariatric surgery.


Between 1979-1988 the plaintiff had three sons and gained considerable weight, despite trying diets, weight loss clinics, exercise classes, medications, injection therapy and self-help videos.  Due to joint pain, occasional stress incontinence and shortness of breath, she underwent vertical banded gastroplasty (VBG) or vertical gastric partitioning (VGP) on February 3, 1988.  She dropped from 268 pounds to 130 pounds following the surgery, but then regained 70 lbs by 1991.

She was referred to the defendent on April 2, 2001, and carried out a gastroscopy on her on May 28, 2011.  No sign of the VBG was noted, suggesting the staple line opened and her stomach was back to its previous size.   During a consulation with the defendant on July 4, 2002, he decided she was a suitable candidate for Roux-en-Y gastric bypass surgery (RYGB).

The court referred to “Update: Surgery for the Morbidly Obese Patient” to identify factors that surgeons typically use to identify candidates for bariatric surgery:

  • chronic back pain
  • chronic neck pain
  • chronic knee pain
  • chronic hip pain
  • osteoarthritis
  • cervical disk disease
  • lumbar disk disease
  • urinary stress incontinence

The defendant did not explicitly reference any of these criteria during his final consult, and instead invoked the plaintiff’s weight as interfering with her quality of life.  Although the medical records did show that the plaintiff suffered some of these symptoms, the defendant did not ask the plaintiff if any of these symptoms interferred with her work, household activities, or recreational trips and family outings.  The plaintiff alleged that her back pain was assumed to be due to obesity without a proper history that would include traumatic accidents, medication history, and consultation with other physicians.  She indicated at trial that her back and hip pain did not interefere with any of this work or activities.

Following the surgery the plaintiff was readmitted to the hospital three times between December 29, 2002 and June 27, 2003, and underwent four surgeries.

 Legal Analysis

The standard of care in medical malpractice cases is established in Crits v Sylvester, [1956] O.J. No. 526,

[31]           …The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

Justice Shaughnessy summarized the principles of the standard of care in medical malpractice expressed by the Supreme Court of Canada in ter Neuzen v. Korn, [1995]  S.C.J. No. 79,

(a)   A doctor has a duty to conduct his practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. That conduct must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence.

(b)   Courts generally determine whether the conduct of a doctor breached the standard of care he/she owed to his/her patient by referring to the standard practice of the profession. If the doctor acted in accordance with a recognized and respectable practice of the profession, he/she will not be found negligent.

(c)   Where common sense and prudence suggest the doctor’s conduct was negligent, no reference is needed to the standard practice of the profession. In such a case the trier of fact may find the doctor negligent for failing to adopt obvious and existing alternatives to avoid risk of injury to his/her patient.

The plaintiff referred to Webster v. Chapman and McArdle Estate v. Cox to suggest that negligence can be found from a failure to adopt obvious and existing alternatives, and that the standard of care of a physician increases with the degree of risk.

The defendent relied on Brics v Stroz, [2002] O.J. No. 1089  and Gallant-Clough v. Anderson to claim that a physician must be judged by the knowledge they had at the time of treatment and they are not judged by hindsight.

Justice Shaughnessy referenced Schade v Chris and Baker v McBroom, [1999] O.J. No. 2597 to point out that a complication after the fact does not indicate negligence.  Gent and Gent v. Wilson, [1956] O.J. No. 535 and Tacknyk v. Lake of the Woods Clinic and Brown, [1982] O.J. No. 170 indicate that the standard of care is based on the particular circumstances of the case and is a matter for the court, not medical experts, whose views are only taken into consideration.

Clinical guidelines were referenced extensively in the trial, and  Bafaro v Dowd held that they are not the equivalent of the legal standard of care,

Standard of Care vs. Clinical Guidelines

[34]      Guidelines are not equivalent to, and should be distinguished from, the legal standard of care to be applied by the Court.

[35]      In De Jong v. Owen Sound General, [1996] O.J. No. 809 (Gen. Div.) the Court held that while:  “practice guidelines” may be generally respected and therefore relevant considerations in the Court’s assessment of the standard of care, they are not intended to, and do not determine the legal standard of care that the Court will impose on a medical professional, especially where there is expert opinion evidence on the standard of care with reference to the facts of the particular case.

Physicians following a respectable opinion that may be in the minority will not be found negligent, because the courts lack the institutional competence to decide between reasonable medical models (Connell v. Tanner).

After reviewing the testimony of the medical experts Justice Shaughnessy rejected the strict use of guidelines as an approach that would lead to irrational clinical results, especially since the plaintiff underwent revision surgery, not primary surgery.  Candidacy for bariatric surgery was largely dependent on the exercise of clinical judgment on by the surgeon, and there was considerable variation in the standard of practice.

The defendent utilized obesity-related comorbidity criteria that was in accordance with a respectable body of medical opinion, and could not be held liable.

The Rule in Browne v Dunn

Justice Shaughnessy also commented on the credibility of the plaintiff, who called into evidence information related to a Physical Demand Analysis (PDA) conducted on June 28, 2002 using an Arcon System, in connection with a  Post-Offer Screen for a job offer.   Although the physiotherapist administrering the test concluded she was within normal limits and physically fit for the job, she did not have the plaintiff’s medical records or proper history, and did not know she was on pain medications during the assessment.

The history that the plaintiff provided Ms. Sharon Gabison, the physiotherapist, included that she had no prior illnesses or surgeries and no prior WSIB claims.  Justice Shaughnessy stated,

[68]      I have noted that this history provided by the plaintiff seriously conflicts with other evidence given by the plaintiff at trial. She had a VBG in 1988; she had a long history of lower back pain; she had musculoskeletal injuries sustained in a motor vehicle accident, and at her workplace she had a WSIB claim.  She also had numerous medical treatments related to her joint pains and injuries, as well as Xylocaine and Marcaine injections.

In response to this the plaintiff claimed that the information used to impeach her credibility violated the rule in Browne v. Dunn.    Justice Shaughnessy responded,

[212]   … the plaintiff testified in chief concerning her past health, accidents and WSIB claim. The plaintiff called as her witness Ms. Gabison, and introduced through this witness the history provided by the plaintiff. The defense did not call this evidence. No objection was made at trial. I find that the rule in Browne v. Dunn does not apply.

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.