Simon v. Lusis – Reasons for Judgment

September, 2000

Note: The Simon vs. Lusis case was overturned on appeal. The appeal turned on the issue of causation and not on the doctor's failure to meet the accepted standard of care. The issue of the doctor's negligence and failure to meet an accepted standard of care was not dealt with by the Court of Appeal.

The following is the text of the original judgment in which Bogoroch and Associates was involved.

Simon v. Lusis – Reasons for Judgment

October 20, 2000
Before the Honourable Mr. Justice Juriansz

Oral Reasons for Judgment

First, I will set out the basic facts.

Mrs. Nadine Simon was born September 29, 1966 in Newfoundland. She completed grade 11 in 1986; married in July of 1990; had a son in January of ’89 and a daughter in July of ’94.

In 1991, while living in New Brunswick and working on an assembly line, she injured her back and was never returned to work. She had unsuccessful back surgery in November of 1991, and ever since then has been on Workers’ Compensation or Canada Pension Plan Disability Benefits.

Since then, she has suffered severe back pain. In July of 1996, she was back living in Newfoundland and began to experience gastric symptoms. Her family doctor, Dr. Dennis, referred her to a gastroenterologist, Dr. Jenkins.

Dr. Jenkins visually confirmed that she was suffering from a gastric ulcer by using a gastroscope. The vast majority of gastric ulcers are caused either by a bacterium called “H. Pylori” or by the use of NSAIDs. NSAIDs are a group of medications that include aspirin. Gastric ulcers that are caused by NSAIDs are treated by a drug named “Losec,” which evidently is highly effective. Ulcers caused by H. Pylori are treated by triple therapy which is comprised of Losec and a combination of antibiotics.

Dr. Jenkins took a biopsy which indicated that Ms. Simon’s ulcer was H. Pylori negative. Thus, it may be concluded Ms. Simon’s ulcer was caused by the use of NSAIDs and the continued use of NSAIDs was extremely dangerous to her. If Ms. Simon stopped taking NSAIDs, it would be highly unlikely that the ulcer would recur after it had been appropriately treated.

On the other hand, if she continued to take NSAIDs, there was a high likelihood that the ulcer would come back or that it would begin to bleed or perforate. A bleeding or perforated ulcer is life threatening. Smoking is also not good for ulcers. Dr. Jenkins prescribed Losec for Ms. Simon and told her to stop smoking and to discontinue taking aspirin. He said that if she had backaches she should use Acetamaphene Nofen. This was at the end of November, 1996.

In March of 1997, Ms. Simon moved to Brampton, Ontario with her family. She came under the care of Dr. Lusis who has had a family practice in Brampton since 1976.

She first saw him on April 7, 1997 and remained a patient of his until July, 1998.

While on a trip to Newfoundland in July, 1998, she vomited blood and was admitted to the hospital where she continued to bleed from a large gastric ulcer. She required blood transfusions and emergency surgery to remove the portion of her stomach contain the ulcer. Ms. Simon had been taking over-the-counter medication called “AC&C” which stands for Aspirin, Codeine, and Caffeine.

Ms. Simon claims that Dr. Lusis failed to exercise a reasonable standard in his care of her and had he done so she would not have had a recurrence of the ulcer, the complications of the ulcer, and the surgery to remove the portion of her stomach.

Ms. Simon claims that Dr. Lusis failed to give her any warning about the use of NSAIDs or an inadequate warning. She also claims that Dr. Lusis failed to refer her to a gastroenterologist in a timely manner to ensure that her ulcer, whether had been documented in Newfoundland earlier had healed properly.

I will now turn to an assessment of the quality of the testimony.

For the full decision, click to download:

Simon v. Lusis – Reasons for Judgment