CITATION: Keller v. Galberg, 2015 ONSC 4335
DIVISIONAL COURT FILE NO.: DC-14-97-00
DATE: 20150703
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JUSTICE R. TZIMAS
BETWEEN:
Shelley Doris Ilean Keller
Christopher Richard and Katharine Book, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
Dr. Allan Galberg
Valerie Wise and Esther Nwator, for the Defendant (Appellant)
Defendant (Appellant)
HEARD: June 19, 2015 at Brampton
REASONS FOR JUDGMENT
[1] Dr. Allan Galberg appeals the decision of Deputy Judge Bowker wherein she gave judgment in favour of the plaintiff in the amount of $21,687.49 on account of her dental negligence claim. Dr. Galberg seeks to set aside the judgment on the basis that the trial judge made numerous errors of law, without regard for the proper legal tests or the requisite expert evidence.
[2] Ms. Keller opposes the appeal and asks that the judgment be upheld by this court. She states that the trial judge applied the correct legal tests and had more than sufficient evidence on which to base her conclusions.
[3] I agree that the trial judge applied the correct legal tests and was correct in law in the conclusions that she reached. For the reasons that follow, I therefore dismiss this appeal.
BACKGROUND
[4] Ms. Keller sought damages for injuries she suffered to her lip implants during the extraction of her four wisdom teeth. Dr. Galberg conducted the surgery.
[5] Prior to the surgery, Ms. Keller had a consultation with Dr. Galberg concerning the extraction of her wisdom teeth. In that consultation, Ms. Keller raised with him her concerns about her lip implants with particular reference to the possibility of complications with the procedure as a result of the implants. Dr. Galberg reassured her that there was nothing to worry about and Ms. Keller went ahead with the surgery.
[6] Immediately following the surgery, Ms. Keller noticed bruising on her bottom lip. A week following the surgery, Ms. Keller realized that her implants had shifted and that resulted in bumps, indents, asymmetry in her lips and drooping. The implants were permanently damaged resulting in permanent restrictions to the opening of her mouth and disfigurement of her smile.
[7] Although Dr. Galberg’s nurse recorded the implants on Ms. Keller’s chart, Dr. Galberg did not recall any discussion about Ms. Keller’s implants. Nor did he make any notations in his own notes. Dr. Galberg went as far as to suggest that had he known about the implants and had the discussion taken place, “there would have been a whole different discussion after that and some notes about it, because it’s quite unusual.” Dr. Galberg also said that there would be no alteration in the technique for the removal of the wisdom teeth. Finally, Dr. Galberg acknowledged that “silastic implants used in the face are notorious for migrating and I’ve had occasion, several times, to remove implants”.
[8] The trial judge found that Ms. Keller drew Dr. Galberg’s attention to her implants at both her initial consultation and then with Dr. Galberg’s nursing staff. Ms. Keller entrusted her care to Dr. Galberg with the understanding that he would carry out the extraction of her wisdom teeth with full consideration of the implants. In light of these findings, the trial judge concluded that, “Dr. Galberg did not turn his skill and knowledge to care for Ms. Keller’s permanent implants”. As such, Dr. Galberg breached his standard duty of care in his treatment of Ms. Keller.
ANALYSIS
[9] In framing this appeal, counsel for Dr. Galberg was clear that she did not take issue with the findings of fact. In my review of the reasons for judgment, I note that the trial judge considered two issues: a) Did Dr. Galberg breach the standard of care in performing the extraction? If so, did the breach cause the Plaintiff’s injury? and b) Did Dr. Galberg breach his duty to disclose the risks of the procedure? If so, did the breach cause the Plaintiff’s injury? I propose to review these issues in reverse order.
a) Informed Consent
[10] Beginning with the subject of Ms. Keller’s informed consent, the trial judge did not err in her conclusion that Dr. Galberg breached his duty to disclose the material risks of the procedure insofar as it related to the handling of the lip implants.
[11] I begin with the finding that the trial judge did not err in law in allowing the cause of action for the lack of informed consent to proceed as a separate cause of action. I disagree with the contention that the trial judge failed to treat informed consent as a separate cause of action. To the contrary the trial judge treated this as a distinct issue for consideration.
[12] I also disagree with the contention that this cause of action was inadequately pleaded. I agree that there is nothing in Ms. Keller’s claim that says, to use counsel’s words, “you should have told me”. However, that is not fatal to the pleading. Her reliance on Dr. Galberg’s reassurances, such as they were, was sufficiently pleaded.
[13] It is well recognized that in the context of Small Claims Court proceedings where litigants are often unrepresented, it is appropriate to give the pleading a liberal interpretation. The caveat to that principle is that the defendant not be taken by surprise, see Popular Shoe Store Ltd., v. Simoni, [1998] N.J. No. 57 (Nfld. C. A.) and Equirex Leasing Corp. v. 2028260 Ontario Ltd., 2010 CarswellOnt 7519 (S.C.J.). It cannot be said that Dr. Galberg was taken by surprise with this cause of action. He addressed the issue of informed consent in the Statement of Defence and through his expert’s report.
[14] The trial judge considered the two components of an informed consent claim and applied that law correctly to the facts before her. Those two elements involved the consideration of the following:
a) inadequate disclosure of the nature of the surgery, its material risks or treatment options available to the patient such that informed consent was not given; and
b) the patient or a reasonable person in the patient’s position would not have proceeded with the surgery but for the physician’s failure to disclose that information.
[15] Beginning with the first element of the test, that question is primarily a factual question. The trial judge found that the Dr. Galberg did not disclose any risks related to the lip implants. In particular, Dr. Galberg said nothing about the migration of implants, which he discussed at some length at the trial. In my view, most telling in Dr. Galberg’s own testimony was the admission that had he known about the implants, “there would have been a whole different discussion after that and some notes about it”. Dr. Galberg reacted in that way to bolster his initial position that he did not know about the implants. The fact that he then changed his evidence and tacitly admitted that Ms. Keller’s chart contained a reference to the implants, does not change the underlying implications of his admission that knowledge of the implants would have required a different conversation with Ms. Keller concerning the risks to the implants. It stands to reason that the separate conversation that Dr. Galberg spoke of would relate to the risks to Ms. Keller’s implants.
[16] Regarding the second element of the test, I am satisfied that the trial judge addressed both the subjective and the objective components of the test for causation flowing from the lack of informed consent. Her whole analysis was framed within an analysis of a “reasonable person in the particular circumstances of the Plaintiff.” In so doing she relied on the direction of the Ontario Court of Appeal in Reible v. Hughes, 112 D.L.R. (3d) 1 (S.C.C.).
[17] The trial judge rightly undertook her analysis in light of Ms. Keller’s situation and her “quite unusual situation”, to quote Dr. Galberg. However, there can be no doubt that the manner in which she analyzed the reasonableness of Ms. Keller’s subjective concerns crossed into the consideration of a reasonable person’s conduct in Ms. Keller’s circumstances. Her reference to the reasonable assumption that Ms. Keller would take the extra time and effort to seek further opinion about the wisdom tooth extractions satisfied that requirement and implied the conclusion that a reasonable person in Ms. Keller’s unusual circumstances would have undertaken further research and considered her options before proceeding with the surgery.
[18] In doing so, the trial judge came to that conclusion without the benefit of hindsight and without focusing on the actual complications. Rather, having found that for Ms. Keller the implants were something very serious, that there was no emergency to have the wisdom teeth removed, and that Ms. Keller would have taken the time to research her options, the trial judge concluded that Ms. Keller was deprived of the opportunity to be informed appropriately and to consider her options.
[19] As a final comment on this issue, I would like to comment on counsel’s argument that a plaintiff cannot recover in tort for “lost chance”. She goes on to argue that the trial judge committed a palpable and overriding error in finding that Ms. Keller would not have gone ahead with the procedure had she been advised of the risks, since in the past Ms. Keller had taken far greater risks with the implant surgery. With respect, the trial judge did not conclude that Ms. Keller would never have gone ahead with the surgery. The issue for the trial judge was not the magnitude of the risk that Ms. Keller was prepared to take; it was about whether Ms. Keller would explore other options such as for example the identification of a different dental surgeon or a postponement of the surgery.
[20] I note on the latter point that there was no evidence before the trial judge to suggest that there was any emergency to have the wisdom teeth removed immediately. Both of the experts who discussed the extraction of wisdom teeth said that it is best that impacted wisdom teeth be removed to avoid eventual infection. But neither expert suggested that in Ms. Keller’s case she was obliged to proceed with the surgery then and there.
[21] To conclude on this issue, it is my view that my analysis on the subject of informed consent is sufficient to be dispositive of the appeal. However, I will proceed to review the standard of care exercised by Dr. Galberg in performing the extractions given the trial judge’s analysis of that issue and Dr. Galberg’s contention that she erred in law in her conclusions.
b) Dr. Galberg’s Standard of Care In Respect of the Negligence Claim
[22] In my review of the trial judge’s analysis of this issue I do not find any errors of law. The trial judge concluded on the basis of the expert evidence before her that the wisdom tooth extraction caused the injury to Ms. Keller’s lips. The particular breach did not lie in the technique that was used for the extractions; those were successful in and of themselves. The breach resulted from Dr. Galberg’s failure to inform himself on how to go about the surgery in light of the lip implants. In this regard, the evidence before the trial judge was that when faced with unique circumstances, to what would otherwise be standard procedures, clinicians have a duty to inform themselves about particular approaches and cautions they might have to take.
[23] Whether such research would have produced helpful guidance or whether the doctor would have concluded that there was no way to minimize the handling of the lips is unknown, because that research was not undertaken. The experts suggested that the extraction technique would not have been different but none of the experts were experts on the handling of lip implants. Dr. Galberg’s own testimony that there would have been a different discussion is suggestive of either the need for some special care or a discussion concerning the risk. The trial judge concluded in her findings of fact that neither occurred.
[24] Insofar as causation is concerned, the trial judge accepted the experts’ evidence of the possible inadvertent pressure on the patient’s lower lip. In addition, the trial judge situated the cause in the failure to take any special precautions to prevent injury to the lips. I note that there was no evidence by any of the experts that precautions could not be taken or that injury to the lip implants was inevitable. By implication, the trial judge concluded that “but for” Dr. Galberg’s failure to research the appropriate handling of the lips and but for Dr. Galberg’s failure to take the appropriate precautions regarding the lips, the injury would not have occurred. In doing so, the trial judge applied the proper legal tests and did not err in her finding of causation.
FINAL DISPOSITION
[25] Based on the above, the appeal is dismissed. The parties are encouraged to settle the issue of costs of the appeal. Should they fail to reach such agreement, then, Ms. Keller shall have until July 17, 2015 to make submissions and Dr. Galberg shall have until July 24 to respond. The parties shall limit their submissions to two pages, double-spaced, in addition to a supporting Bill of Costs.
R. TZIMAS J.
Released: July 3, 2015
CITATION: Keller v. Galberg, 2015 ONSC 4335
DIVISIONAL COURT FILE NO.: DC-14-97-00
DATE: 20150703
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R. TZIMAS J.
BETWEEN:
Shelley Doris Ilean Keller
Plaintiff (Respondent)
- and –
Dr. Allan Galberg
Defendant (Appellant)
ENDORSEMENT
Released: July 3, 2015