REGINA, Sask. — “It’s frightening what happened here,” a judge said, describing how a man fell in his bathtub, went to Weyburn hospital, then went to Regina hospital himself, was discharged, returned to Weyburn hospital, then was rushed back to Regina and airlifted to Saskatoon for emergency surgery. He was left a paraplegic.
In his 56-page decision, Regina Court of King’s Bench Justice Graeme G. Mitchell found that Dr. Anil Kumar acted within the bounds of professional competence when he examined Harvey Lee Dykstra on Aug. 7, 2015.
Although Dykstra got much worse afterward and was later found to have a large blood clot pressing on his spinal cord, the judge concluded that the CT scan available to Dr. Kumar didn’t show the clot and his neurological examination didn’t show any problems.
“While Dr. Kumar’s neurological examination of Mr. Dykstra may validly be criticized, I am not persuaded those criticisms demonstrate that it is more likely than not that Dr. Kumar breached the standard of care expected of a reasonable neurosurgeon in the circumstances," said Justice Mitchell in his Sept. 16 written decision.
This was the second trial. The first ended when the judge dismissed the lawsuit against Dr. Kumar. The Court of Appeal later ordered a new trial, finding the judge had improperly weighed the evidence.
The lawsuit was filed by Dykstra’s daughter, who is the administrator of his estate and lives in Coeur d’Alene, Idaho, U.S.A. Court heard she worked as a nurse for about 21 years.
The fall in his bathtub
According to court documents, Dykstra, then 82 and living independently in Weyburn, fell in his tub on July 29, 2015, hitting his neck on the edge of the tub. He went to Weyburn General Hospital (WGH) the next day, complaining of neck and upper back pain. An X-ray was inconclusive, and a CT scan was recommended.
On Aug. 7, 2015, Dykstra returned to WGH with worsening symptoms, including neck pain, weakness in his extremities, and numbness in his fingers. He was referred to Regina General Hospital (RGH) for a CT scan. He arrived at the Regina hospital by car with a friend. He had a CT scan and was seen by Kumar, the neurosurgeon on-call in Regina.
Kumar took a history, did a neurological exam, and reviewed the CT images. He found no fractures and no neurological problems. He discharged Dykstra and wrote “No treatment required” at the bottom of his consultation record.
On arriving back in Weyburn, Dykstra immediately returned to the WGH complaining of increased weakness and fatigue. He was admitted as a patient and his condition continued to deteriorate.
By Aug. 10, 2015, he couldn’t control his bladder and lost significant mobility. He was transferred back to RGH, where another neurosurgeon, Dr. Luke Hnenny, identified a fracture in his cervical spine and a suspected blood clot. An MRI confirmed a blood clot.
Dykstra was airlifted to Royal University Hospital in Saskatoon, where emergency spinal cord decompression surgery was performed on Aug. 11, 2015. The surgery wasn’t successful, and Dykstra became paralyzed from the waist down, losing the use of his legs and fine motor control in his hands.
He spent his remaining years in a special care home in Weyburn, where he died on March 5, 2020.
Competing expert testimony
During the trial, expert testimony was given by two neurosurgeons.
Dr. Richard Fox, a neurosurgeon in Edmonton, Alta., testifying for the plaintiff, said that Kumar’s assessment was too abbreviated and that a spinal blood clot was likely present on Aug. 7. 2015.
Fox testified that the appropriate treatment might have been to place him in a neck brace, that it would have been advisable to admit him to hospital to monitor his situation, such as his arms and legs becoming numb or his head pain becoming more acute. He said he would have written a transfer note to Dykstra’s physician at WGH outlining this.
Kumar didn’t do that, court heard. Instead, he wrote, “No treatment required,” at the bottom of his Aug. 7 consultation record and didn’t prepare a transfer note for the WGH.
But under cross-examination, Fox acknowledged that the blood clot wasn’t visible on the CT scan and it was reasonable for Kumar not to order further tests. Fox also agreed that Dykstra’s neurological deterioration occurred primarily between Aug. 9 and 10, 2015.
Dr. Andrew Nataraj, a neurosurgeon in Edmonton, Alta., testifying for the defence, said Kumar’s examination was appropriate and that the blood clot wasn’t detectable on the Aug. 7, 2015, imaging. He said Kumar didn’t have the radiologist’s report, which wasn’t available until Aug. 9, 2015, and that the CT scan showed no unstable fracture.
The judge found Nataraj’s evidence more persuasive, saying the experts agreed Kumar did an appropriate neurological exam.
“These statements, at worst, suggest that Dr. Kumar may have misdiagnosed Mr. Dykstra on Aug. 7, 2015,” said Justice Mitchell. “Yet, the law is clear that 'it does not follow that misdiagnosis of a patient’s condition is tantamount to negligence on the part of the physician.'”
Progress note reveals apology
A progress note by Kumar revealed that he apologized to Dykstra on Aug. 23, 2015, after visiting him in the hospital.
“I’ve expressed to him that I am extremely sorry that I’ve missed the diagnosis and it has contributed to his present clinical condition,” the note read in part. “There could be technical considerations why and how [I] missed the diagnosis. Patient responded by saying that ‘people make mistakes.’”
Lawyers for the plaintiff argued the entire note was admissible, but the doctor’s defence lawyer argued it was protected by the Saskatchewan Evidence Act that bars apologies from being used to prove fault.
Justice Mitchell admitted portions of the note, including Kumar’s statement “he failed to diagnose correctly and made a mistake.”
Calls for legislative reform
In his decision, Justice Mitchell called for legislative reform, saying judges have been asking for the creation of a no-fault compensation system for patients who suffer catastrophic injuries when no one is at fault.
“Despite these judicial pleas for legislative reform uttered more than four decades ago, sadly little, if any, progress towards the changes advocated for by [judges] has yet been achieved,” said Justice Mitchell.
“In my view, this case illustrates yet again the harsh consequences which can befall a vulnerable and innocent party who suffers catastrophic consequences from a medical mishap through no fault of his or her own.”
ljoy@sasktoday.ca
