"Gynecologist not negligent
Punctured bowel led to brain damage
Chris Purdy, The StarPhoenix
Published: Thursday, November 29, 2007
The gynecologist found not negligent Wednesday in the case of a Lloydminster mother left with devastating injuries after a routine tubal ligation recently settled a second lawsuit with another patient who nearly died following the same surgery.
Dr. Kenneth Graham settled the second suit out of court for an undisclosed sum earlier this month, said lawyer John Jordan of Nanaimo, B.C.
Jordan said his client, Gloria Cooke, was referred to Graham for the laparoscopic tubal ligation at Dawson Creek and District Hospital in 2002. He mistakenly punctured her bowel twice during the surgery.
"She almost died and struggled to hang on for a month," said Jordan.
On Wednesday, after nine weeks of trial, a Saskatoon jury determined Graham was not negligent in his care of Lisa Baert when he punctured her bowel during a tubal ligation at the Lloydminster hospital in 1999.
Baert went into septic shock and doctors had to amputate her hands and feet. She also suffered severe brain damage.
Baert and her family were claiming more than $10 million in damages against Graham. Prior to trial, they reached an undisclosed settlement with the Lloydmister hospital and some nurses.
One of the six jurors, her bottom lip quivering as the verdict was read, wiped tears from her face and glanced at Baert's husband, Mark, and his three sons sitting in the courtroom.
The jurors did not have to be unanimous, but five of the six had to agree on each question posed in a six-page verdict sheet in order to reach their decision.
Baert, confined to a wheelchair and living at the Parkridge Centre long-term care home, was unable to make it to the courthouse for the verdict. And her husband did not talk to reporters when he left the building.
Graham, who no longer works as a doctor, also wasn't at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters.
She said the trial was difficult for her client and obviously the jury.
"I realize how difficult it would have been for the jury to reach the conclusion that it did," said Glazer.
"But the jury did what it had to do, and that was set aside its emotion and look at the case objectively."
Baert's lawyers planned to call about 10 other patients during the trial, some -- like Cooke -- suffered complications during surgeries conducted by Graham.
But Court of Queen's Bench Justice Grant Currie ruled the patients couldn't testify because their stories weren't relevant to Baert's case and would prejudice the jury.
Graham said Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home.
His lawyers also argued bowel perforations are a recognized but rare risk of tubal ligations. And instruments inserted into the abdomen mistakenly puncture the bowel in about four of every 10,000 surgeries.
Jordan, Cooke's lawyer, said the risks increase if a woman has had prior abdominal surgery, which was the case with Cooke.
The 41-year-old mother of three argued she told Graham about her prior surgery, although Graham claimed she did not, said Jordan.
Graham, granted a licence by the B.C. College of Physicians and Surgeons despite Baert's injuries in Saskatchewan, went ahead with Cooke's tubal ligation on Oct. 31, 2002.
Graham had to cut through lesions and adhesions formed during Cooke's prior surgery. When Graham saw the abnormalities, he should have stopped the surgery, said Jordan.
"He didn't have the skill to do the dissection. It's a whole other level of surgery, not what obstetricians and gynecologists should be doing."
But he continued and the operation took 45 minutes, Jordan said, four times as long as Baert's surgery and what Graham testified was normal.
Jordan said Graham kept Cooke in hospital overnight to monitor her condition but she was released the next day. She soon returned to the hospital in pain but Graham diagnosed her with a gastrointestinal problem and sent her home.
She returned to hospital a second time, and another doctor discovered she was suffering from septic shock.
She was sent to hospitals in Grand Prairie and Edmonton for life-saving surgeries.
Doctors determined two puncture holes in her bowel occurred during the tubal ligation, said Jordan.
He said Cooke is still in chronic pain and has an incisional hernia in her abdomen.
She has returned to work as a medical office assistant. But because she no longer has stomach muscles, she needs to wear a girdle each day to hold herself in.
Graham voluntarily stopped doing laparoscopic operations after Cooke's surgery.
But four months later, Dawson Creek media reported 35-year-old Dana McLellan had to be air-lifted to Vancouver after Graham cut her bladder during a hysterectomy.
The hospital, the Northern Health Authority and the B.C. College of Physicians and Surgeons reviewed complaints against Graham but his licence was not revoked.
College spokesperson Susan Prins said Graham voluntarily agreed to have his skills assessed at the University of Saskatchewan.
And although he passed, he did not return to work.
Graham, 55, testified in the Baert case that he was unable to work after a heart attack in 2003. He underwent quintuple bypass surgery, then developed a depressive illness.
He now lives in St. Albert, just north of Edmonton."
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