Recent case "like a CSI episode" says Thomson Rogers' Aleks Mladenovic

This article was produced in partnership with Thomson Rogers Lawyers.

After thirteen years of hard work, including a three-week liability trial, Aleks Mladenovic, partner at Thomson Rogers Lawyers, was thrilled to ultimately get a victory for his client in Sommerville v. Fine and Brown.

"It was a highly technical case in the sense that we had to demonstrate what the client's X-rays, CT and MRI scans showed," says Mladenovic. "We did a forensic look at all of the imaging and worked our way backwards — it was like a CSI episode. We were able to overcome some contemporaneous medical records that went completely against our theory of the case by proving our case on a well-rounded, radiologic, objective basis."

On a Saturday night in September of 2008, Andrew Sommerville was stabbed repeatedly and severely injured. He was stabbed in the abdomen, his ear was almost amputated and the knife penetrated his right knee, severing the patellar tendon which runs below the kneecap and attaches it to the bottom part of the shin, forming part of the extensor mechanism that allows the leg to extend.

Sommerville was taken to Trillium Hospital by ambulance and seen by Dr. Geoffrey Fine, an emergency physician, who "dismissed my client from the get-go," says Mladenovic. At trial, Mladenovic argued that Dr. Fine breached the standard of care in the assessment and treatment of the wound to Sommerville's right knee, that the breach resulted in delayed diagnosis and treatment and as a result, Sommerville had a poor outcome and suffered damages, including a failed surgical repair once the lacerated tendon was eventually diagnosed months later.

The whole case turned on whether Dr. Fine did or did not perform an active extension assessment of the tendon of Sommerville's knee before stapling up the wound and discharging him. The defence relied on an entry by Dr. Fine in the chart stating the tendons of the knee were normal to support Dr. Fine's claim that he had done the assessment, as well as a note by a plastic surgeon who assessed Sommerville the next day and whose note suggested that Sommerville could extend his leg, but was limited somewhat by pain. Given how much deference judges tend to give doctors and their contemporaneous notes, "it's very challenging to win a case where you've got credibility issues between the doctor and the patient, and the doctor's notes say he did something — you have to prove definitively the aspect of factual causation," Mladenovic says.

Early in her lengthy reasons for judgment, Justice Susan Vella quoted Justice Katherine van Rensburg of the Ontario Court of Appeal in the Armstrong v. Ward decision, finding that the issue at hand was a question of factual causation. In order to determine whether or not Dr. Fine did the assessment, Justice Vella held that she must first determine the condition of Sommerville's knee. All told, Sommerville had initial X-rays done in the emergency room, which were not diagnostic of a tendon laceration because they don't show soft tissue; a CT scan ordered by Sommerville's family doctor eight weeks later; and an MRI 12 weeks later that definitively showed the laceration.

The defence argued the tendon wasn't lacerated until November, when it was visible on the MRI, so therefore Sommerville must have somehow completely lacerated it between scans. But Mladenovic says his radiology expert, Dr. Gordon Cheung, was able to show that you actually could see the laceration on the CT scan if you played with the contrast on the CT software. Mladenovic also led powerful evidence from Dr. Steven Rosenfeld, the surgeon who performed the initial surgery on Sommerville's knee in an attempt to repair it. Dr. Rosenfeld testified that he immediately suspected that the tendon was completely lacerated and when he operated, saw it was a clean cut and couldn't have been injured subsequently as the defence alleged.

Mladenovic went about proving the plaintiff's theory of the case by treating it like a forensic case. The plaintiff's experts looked at the knife’s trajectory: what was the angle of the knife and where would that have put the knife on Sommerville's knee? That analysis put the blade right on top of the patellar tendon. And despite not capturing the tendon, the X-rays did capture the patella (kneecap) which sits in a certain position when held down by the tendon. Mladenovic's radiology expert did "quite a bit of forensic analysis" and compared the position of the patella on the X-rays to the CT and MRI scans, finding it was similar throughout. Why would a patient have a high-riding kneecap unless that patellar tendon had been completely lacerated from the first imaging? They also knew the knife blade went deep into the knee as opposed to causing a superficial wound because the X-rays showed black space in the knee joint, indicating air in what is supposed to be a sealed capsule filled with synovial fluid that should show up as white on the scan.

"That was the kind of evidence we marshalled," Mladenovic says. "Radiology tells us that Dr. Fine's assessment never happened, because it tells us the tendon was completely lacerated. That would have been immediately obvious because Andrew wouldn't have been able to lift his leg off the table."

Despite refusing to admit he had not done the assessment, in cross examination "Dr. Fine's credibility was toast because we found he had three different versions of his emergency records," Mladenovic says.

The chart Dr. Fine had in the hospital included the entries "tendons within normal limits" and "ligaments intact," which were the only entries in relation to the alleged right knee assessment. But when Sommerville was sent for X-rays during his initial ER visit, a copy of what Dr. Fine had written up to that point was sent with the patient for the radiologist's review — and that version did not contain the phrases "tendons within normal limits" or" ligaments intact." That means the doctor added them some time after his initial assessment, but he had testified at discovery and trial that he wrote everything as he was doing it. Dr. Fine's story then changed to claim whoever took Sommerville for the X-rays must have taken the chart from him, so he had to add those entries after.

But that doesn't explain the third version of the doctor's notes, Mladenovic says. After Dr. Fine had done his assessment and discharged Sommerville, he gave Sommerville's mother a copy of his notes for the family doctor — and that version is missing the second phrase, "ligaments attached." That means sometime after Sommerville left the hospital, Dr. Fine added that last note. The trial judge was concerned about this.

"Dr. Fine was at all times during the litigation difficult, obstructive, and that came through at trial.” Mladenovic says. "Those documents were admitted into the record in a joint documents brief, for the truth of its contents subject to our ability to call evidence to contradict it — and that's what we did. That was the key to the case."

Mladenovic's final argument to the judge was a question: what was the condition of Andrew Sommerville's patellar tendon when he was seen by Dr. Geoffrey Fine? Leave aside whatever's in the notes, and whatever Sommerville and Dr. Fine say — focus on the objective evidence. Look at the imaging. That is precisely what Justice Vella did.

"Ultimately, we convinced the judge the radiologic evidence showed definitively that Andrew's patellar tendon was completely lacerated from the beginning and therefore Dr. Fine's notes and his evidence could not be true," Mladenovic says. "And, that's why we were able to win."

Sponsor / Client bio: Aleks is a partner in the Personal Injury Group with a particular focus on health law, medical malpractice and personal injury litigation. He has represented personal injury plaintiffs at the trial and appellate court levels.