COURT OF APPEAL FOR ONTARIO
RE: HOPE SCOTT (Plaintiff (Appellant)) and DR. J.
CHAPNICK, DR. K. CONRAD AND DR. L. DINDZANS
(Defendants (Respondents))
BEFORE: FINLAYSON, LABROSSE AND GOUDGE JJ.A.
COUNSEL: Joan C. Manafa
For the appellant Hope Scott
Jeremy J. Devereux
For the respondent Dr. J. Chapnick, et al.
HEARD: February 21, 2000
On appeal from the judgment of O’Connor J., dated March 25, 1998.
E N D O R S E M E N T
1When the appeal began, counsel advised that she was
abandoning the argument respecting res ipsa loquitur.
2The trial judge accepted the expert evidence of Dr. Ellis
that the defendant was not negligent in the performance of the
operation. Dr. Ellis was not cross-examined about the factual
assumptions on which he based his opinion nor was there contrary
expert evidence tendered by the plaintiff. On this basis, it was
entirely open to the trial judge to find no negligence in the
performance of the surgery.
3The trial judge further found that the material risk of
permanent change in sensation was disclosed to her. There was
evidence to support this finding. As to other risks now argued to
be material, there was simply no evidence that they are risks
that would require disclosure. There was therefore no failure to
obtain informed consent.
4As to the third argument, namely, that had the appellant
been properly advised she would not have consented to the
surgical procedure, in our view, the trial judge properly applied
the modified objective test and his conclusion is supported on
the evidence, particularly in the light of his concerns about the
appellant’s evidence.
5The appeal must, therefore, be dismissed with costs.
“G.D. Finlayson J.A.”
“J.M. Labrosse J.A.”
“S.T. Goudge J.A.”