N.S. Supreme Court awards $765K in medical malpractice suit over amputation

A Halifax-area bank executive has been awarded more than $765,000 for post-operative advice that ultimately cost him the lower part of his left leg.

David Robbins, 59, had what should have been a fairly routine hip replacement surgery on Jan. 26, 2012. The surgery itself went well, but Robbins started experiencing pain days after the procedure when he was back at home and performing the rehabilitation exercises he'd been instructed to do.

Robbins tried to reach the doctor who'd performed the surgery, Dr. Michael Gross, but he wasn't available. Instead, Robbins was directed to the on-call orthopedic resident, Dr. Arpun Bajwa.

The contents of their phone conversation on Feb. 6, 2012 was the subject of some dispute at the trial, which was conducted in September and October of this year.

Robbins described Bajwa as being very abrupt on the phone and acting as though he was interrupting her. He said her advice to him was: "It doesn't sound like anything serious, stay home, do your exercises and everything should be fine".

Robbins testified he was relieved when he heard this and didn't feel he had to go to the hospital or follow up with calls to other doctors.

Leg needed to be amputated

Bajwa claimed that she told Robbins to call his family doctor or go to a hospital emergency room but he disputed that version of the call. Bajwa said she didn't take notes during her phone conversation but said she had a clear recollection of what was said.

Days later, when senior staff questioned her about the Robbins case, Bajwa drafted a letter which began with the line: 

"This letter is written for my lawyer in the event legal action is pursued against me with respect to patient Robbins, David."

Robbins's pain persisted and on Feb. 9, 2012, he called the orthopedic clinic at the hospital. The nurse who returned the call told his wife, Natalie Robbins, to pinch her husband's toes. They were white and the colour did not return to them. The nurse instructed Robbins to bring her husband to the hospital.

When Robbins arrived at the hospital, he was referred to a vascular surgeon. It was determined he had developed clots in arteries in both legs.

He had surgery the next day, Feb. 10, but it was too late. The condition of his left leg had deteriorated to the point where it was amputated below the knee on Feb. 18, 2012.

Robbins 'reliable and credible'

Many of the facts in this case are not in dispute. Justice James Chipman had to assess the credibility of the key players.

"In assessing the witnesses in this case, I found Mr. Robbins to be both reliable and credible," Chipman wrote in his decision.

As for Bajwa, the judge focused part of his assessment on the letter she drafted for senior hospital staff when questioned about this case. 

"I am dubious about her denial that it was, in fact, written 'for my lawyer in the event legal action is pursued against me'", Chipman said. "I would add that I am similarly sceptical that she wrote this letter at a time when she says she cannot recall knowing whether or not Mr. Robbins' left leg had been amputated."

Robbins had also named the surgeon, Gross, as a respondent in his lawsuit. But the judge found Gross was not negligent in his conduct.

Robbins's lawyer, Ray Wagner, said medical malpractice suits like this one are difficult to win in Nova Scotia.

"It's a very difficult road to climb, we worked very hard," Wagner said Tuesday. "Our team here worked very hard on this case as did Mr. Robbins and so we're happy to have a positive result."

Incident had a 'great impact'

After finding the doctor liable, Chipman then had to assess damages.

Prior to losing his leg, Robbins was an avid golfer and hiker. The court heard he has had to reduce both activities. While he used to look after his own yard maintenance and snow removal, he has had to hire companies to perform that work for him.

"It has a great impact on an extremely active individual who enjoyed a lot of outdoors activities, getting out and about, keeping fit and now that has been compromised so this is a recognition of how that has been compromised," Wagner said.

Robbins was off work for some time while he recovered from both surgeries and did rehabilitation, but court heard he has been able to resume a full work schedule.

The award includes $210,000 for general damages and more than $417,000 for future care. That figure includes the purchase of new and improved prosthetic devices.

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