Court File and Parties

COURT FILE NO.: CV–12–0455226–00 DATE: 20200311 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

DIANA BROWN Plaintiff – and – DR. JOSEPH BAUM Defendant

COUNSEL: O. Barnwell for the Plaintiff S. Zacharias and S. Gaudet for the Defendant

HEARD: February 18, 19, 20, 21, 25, 2020

GILLIAN ROBERTS J. :

[1] Diana Brown suffered from chronic back pain. She asked Dr. Baum, a plastic surgeon who had performed a panniculectomy, or type of tummy tuck, on her, whether he could help. He noted that her breasts were large – 44DD – and she had “shoulder grooving” caused by the weight of the breasts pulling down on her bra straps. Dr. Baum explained that he could do a breast reduction. He sought and obtained authorization from OHIP, and eventually performed the surgery. There is no claim of negligence in relation to the surgery itself, but, unfortunately, Ms. Brown suffered very serious complications: necrosis (or tissue death) of the nipple areola complex and some of the fat in her breasts. The complications were extremely unpleasant, and required a number of subsequent surgeries. Ms. Brown has been left with breasts that she feels are scarred and misshapen.

[2] Ms. Brown brings this action in negligence in relation to the manner in which Dr. Baum obtained her consent for the breast reduction surgery. She claims that her consent was not informed because Dr. Baum did not tell her that there was a risk that she would lose her nipples, and the fat in her breasts, risks that were elevated in her case because she was obese and a smoker. Had she known about these risks, she asserts that she would not have pursued the surgery. Although her back bothered her, she was managing the pain through a combination of painkillers and marijuana.

[3] Dr. Baum responds that he told Ms. Brown the risks of the surgery, including the risk of necrosis of the nipple areola complex, and that it was elevated in her case because she was a smoker and obese. He took steps to help Ms. Brown minimize that risk, including sending her to an endocrinologist to help her lose weight before the surgery, and requiring that she stop smoking a month before the surgery. In the alternative, even if he did not properly convey the risk of necrosis, it was a minimal risk, and a reasonable person in Ms. Brown's circumstances would have proceeded with the surgery.

[4] After considering all the evidence in light of the prevailing test for informed consent, I conclude that the risk of fat necrosis, while low, was material, and Dr. Baum, on his own evidence, did not tell Ms. Brown about it. However, I also conclude that even if he had explained the risk of fat necrosis, both Ms. Brown, and a reasonable person in her circumstances, would still have proceeded with the surgery. The risk was low, and Ms. Brown was in considerable pain that she hoped the surgery would alleviate. Consequently, Dr. Baum is not liable for any damages.

The legal principles governing informed consent

[5] In broad strokes, a plaintiff arguing that informed consent for surgery was not obtained must establish that the defendant doctor failed to adequately disclose a relevant treatment option or a material risk, and that failure caused the plaintiff's damages. This involves two steps. The first step considers the manner in which consent was obtained and whether the requisite standard of care was followed. If it was not, the consent will not be informed, and negligence will be established. (Assault and/or battery require that the procedure performed be altogether different than what was contemplated, which is not this case.) The second step consider causation, and involves both a subjective and a modified objective inquiry. Not only must the plaintiff establish that she would not have proceeded with the surgery if she knew the risk, but also that a reasonable person in the same circumstances also would not have proceeded: See Reibl v. Hughes, [1980] 2 S.C.R. 880 (S.C.C.); Hopp v. Lepp, [1980] 2 S.C.R. 192; Arndt v. Smith, [1997] 2 S.C.R. 539 (S.C.C.); Videto v. Kennedy (1981), 33 O.R. (2d) (C.A.); and Revell v. Heartwell, 2010 ONCA 353, 189 A.C.W.S. (3d) 249.

[6] In Revell v. Heartwell, at paras.42-43, the Ontario Court of Appeal summarized the first step as follows:

Doctors must disclose all material risks to patients before proceeding with treatment. A material risk is one that a reasonable person in the patient's position would want to know about before deciding whether to proceed with the proposed treatment. Risks that are rare will be material if the consequences of those risks are serious.

[Considering whether] there has been adequate disclosure of the material risks attendant on a procedure or treatment….involves three major elements:

1. an explanation of the procedure and the injury that may occur;
2. an explanation of the frequency or likelihood of the injury (risk) materializing; and
3. an explanation of the consequences of the injury (risk), should it occur.

[7] This first step has essentially been codified in the Health Care Consent Act, 1996, S.O. 1996 c. 2, Sched. A, which came into force on March 28, 1996. It confirms a doctor's duty to outline the risks and benefits of treatment, and what alternatives are available, in order to allow a patient to choose the best course of treatment in their circumstances. Section 11 provides:

(1) The following are the elements required for consent to treatment:

1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation or fraud.

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and (b) the person received responses to his or her requests for additional information about those matters.

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.

(4) Consent to treatment may be express or implied.

[8] The first step is also reflected in a 2010 policy statement of the College of Physicians and Surgeons of Ontario which outlines principles relevant to obtaining a patient's consent to treatment:

1. The best interests of the patient are central to all physician–patient interactions.
2. Respect for the autonomy and personal dignity of the patient is central to the provision of ethically sound patient care. Through the translation of these ethical principles to law, the Supreme Court of Canada has confirmed the fundamental right of the individual to decide which medical interventions will be accepted and which will not.
3. In order to exercise their autonomy, patients must be capable of making informed decisions about their health care.
4. The goals of the Health Care Consent Act (HCCA) include promoting individual autonomy and decision–making capacity, and facilitating communication between health care practitioners and their patients.
5. Physicians have the obligation to secure consent and patients have the legal right to either consent to or refuse treatment.

Consent is not valid unless it is informed. A physician must provide a patient with information about the nature of the treatment, the expected benefits, its material risks and side effects, alternative courses of action and the likely consequences of not having the treatment. A physician should not assume that the patient has sufficient background or may not be interested in the information. Without full information, the patient does not have sufficient background to make informed health care decisions, and the consent may not be valid. [footnotes omitted]

[9] As noted, the second step of the test involves both a subjective and a modified objective inquiry. The plaintiff must establish that they would not have consented to the procedure if a relevant treatment option or material risk had been disclosed. But, however honest the plaintiff, their subjective views on consent will invariably be tainted by the subsequent trauma that actually materialized: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, at para. 70. As a result, the plaintiff must also satisfy a modified objective test: would a reasonable person in the plaintiff's circumstances have gone ahead with the procedure or surgery if adequately informed of the attendant risks? The assessment includes consideration of any special circumstances relating to the plaintiff that are present, including any questions the plaintiff might have asked, but does not include idiosyncratic beliefs particular to the plaintiff. The test is not applied with the benefit of hindsight, but rather based on what was known at the time of the consent. The test was described in Reibl v. Hughes, and reaffirmed in Arndt v. Smith at para. 6, as follows:

The test enunciated [in Reibl] relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm in which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any 'particular concerns' of the patient and any 'special considerations affecting the particular patient' in determining whether the patient would have refused treatment if given all the information about the possible risks. [emphasis in original]

[10] The application of both steps of the informed consent analysis turns on the facts. As the Court of Appeal held in Videto v. Kennedy, at para. 19, “the question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure.”

[11] Determining the facts in turn requires a very careful review of the evidence.

The evidence and my conclusions and factual findings in relation to it

The plaintiff's evidence – Dr. Wahrman

[12] The plaintiff sought to tender expert evidence from Dr. Aron Wahrman about “the question as to whether Dr. Baum, a Province of Ontario Plastic surgeon, has breached the standard of care in the manner in which he obtained consent from Diana Brown”. Defence counsel opposed the admissibility of Dr. Wahrman's evidence on the basis that Dr. Wahrman was not properly qualified. Because Dr. Wahrman was only available to testify on the first day of trial, defence counsel agreed that his evidence could be heard in its entirety, and counsel would then make submissions on admissibility. After hearing the evidence, and the submissions of counsel, I gave a bottom line ruling during the trial and indicated that I would provide reasons in the course of my judgment. These are my reasons.

[13] My bottom line ruling was that Dr. Wahrman was not qualified to provide an opinion about the standard of care in Ontario in 2008–2009 regarding the manner in which informed consent for surgery should be obtained, however, he could provide evidence about the general risks involved in breast reduction surgery, and the specific risks posed by Diana Brown's particular circumstances. To the extent that Dr. Wahrman testified about both topics, his evidence about the general risks involved in performing breast reduction surgery, and the particular risks posed by Ms. Brown's circumstances, most importantly her weight and her smoking, is admissible. However, the balance of his evidence is not. Specifically, his evidence about what Dr. Baum should have done to discuss and document the material risks of the surgery, and his opinion that Dr. Baum fell short of what was required, and therefore breached the standard of care, is not admissible.

Positions of the parties

[14] The defendant opposed the admission of Dr. Wahrman’s evidence on the basis that Dr. Wahrman is not qualified to provide evidence about the applicable standard of care in Ontario. However, defence counsel acknowledged that Dr. Wahrman does have expertise in plastic surgery, including breast reduction surgery, and could provide evidence about the general risks it involves, and the particular risks posed by Diana Brown's circumstances.

Dr. Wahrman's evidence

[15] Dr. Wahrman is a plastic surgeon from Pennsylvania. He has spent his career in the United States. He trained to be a plastic surgeon in the United States, was in private practice there, and, more recently, has taught surgery at several prestigious medical schools in the United States. He has never trained or practiced in Canada. Nor has he ever sat on a Canadian committee or taught at a Canadian university. His medical license is not transferable to Canada. Dr. Wahrman testified that he informed himself of the applicable standard of care for obtaining informed consent in Ontario by reading a paper by Kenneth Evans, a lawyer, titled “Consent: A Guide for Canadian Physicians”. In particular, Dr. Wahrman focused on the “bottom line” for obtaining informed consent to surgery:

The patient must have been given an adequate explanation about the nature of the proposed investigation or treatment and its anticipated outcome as well as the significant risks involved and the alternatives available.

The obligation to obtain informed consent must always rest with the physician who is to carry out the treatment or investigative procedure.

[16] Dr. Wahrman explained the general risks associated with breast reduction surgery. The “key risks” include death and embolism (risks that are always possible where general anesthetic is used as it is with breast reduction surgery), and loss of the nipple areola complex, giving rise to the possible need for further surgery. He would describe the complication that occurred in this case as a loss of the nipple areola complex.

[17] Based on reviewing the medical records in this case, Dr. Wahrman also explained the specific risk factors at play in Diana Brown's case. These included the following circumstances:

• Diana Brown was obese.
• Diana Brown was a smoker.
• Diana Brown had previously had breast reduction surgery in the 1980s. In particular, the previous surgery involved the Biesenberger procedure which is an older, fairly radical procedure. Dr. Wahrman explained that given this prior surgery, and the scarring that would result, it could not be assumed that the blood supply was intact.
• Diana Brown had asthma.
• Diana Brown had a history of cardiac disease and hypertension.

[18] Dr. Wahrman explained that these factors are relevant to the risks of breast reduction surgery, both in relation to the general anesthetic and to the surgical procedure. They are also relevant to the ability to heal from surgery, and the possibility of complications arising from surgery and poor healing, such as loss or necrosis of the nipple areola complex. Dr. Wahrman placed no probability on the likelihood of complications in light of these risk factors. He agreed that loss of the nipple areola complex could happen even to a fit, healthy, non–smoker.

The test for the admission of expert evidence

[19] The test for the admission of expert evidence is well-established. In brief compass, it involves a two-step inquiry. At the first step of the inquiry, the proponent must establish the threshold requirements set out in R. v. Mohan, [1994] 2 S.C.R. 9, at p. 20: relevance, necessity, absence of an exclusionary rule, and a properly qualified expert. In the case of novel science, or science used for a novel purpose, the reliability of the underlying science for that purpose must also be established: White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, at para. 23. At the second step, the trial judge must decide whether the benefits of the proposed evidence exceed the risks of admitting it: White Burgess, at para. 24.

Analysis

[20] The concern about admissibility in this case lies at the threshold step. Specifically, Dr. Wahrman, while an eminently qualified plastic surgeon, has no connection to the practice of plastic surgery in Ontario. He simply does not know how informed consent is obtained in Ontario.

[21] When Dr. Wahrman was cross–examined about whether it is the practice in Ontario to do the things he suggests should have been done, such as make multiple measurements, make explicit notes about discussion of the relevant risk factors and their implications, and show the prospective patient photographs of what complications actually look like, Dr. Wahrman acknowledged that he did not know.

[22] Further, Dr. Wahrman agreed that he could not tell us what any plastic surgeon was doing to ensure they obtained informed consent in Ontario in 2008–2009. Nor did he have any knowledge of the baseline practice for getting informed consent in Ontario in 2008–2009.

[23] Dr. Wahrman simply does not have the knowledge to tell us about the relevant standard of care for obtaining informed consent in Ontario in 2008–2009.

[24] In all the circumstances, I concluded that Dr. Wahrman was not qualified to testify about the requisite standard of care for obtaining informed consent for elective surgery in Ontario in 2008–2009. However, he could testify about the risk of breast reduction surgery, and the particular risks posed by Ms. Brown's circumstances.

Diana Brown

[25] I am going to summarize Diana Brown's evidence. I will then explain why I cannot accept most of it. My purpose in doing this is to explain why I cannot rely on most of Ms. Brown’s testimony. It is not to suggest Ms. Brown is not a good person, or that she did not suffer serious complications as a result of the breast reduction surgery. The former is not relevant to my determination, and the latter is not in dispute.

[26] Prior to the breast reduction surgery, Diana Brown suffered from severe back pain. Medication did not help. She testified that her long-time family doctor, Dr. Black, referred her to Dr. Baum, a plastic surgeon, to see if a panniculectomy (or type of “tummy tuck”) might help ease the pain. Ms. Brown initially saw Dr. Baum on August 24, 2004 about a possible panniculectomy. Ms. Brown saw Dr. Brown again about this surgery in 2008 and the procedure was performed in February 2008.

[27] Unfortunately, the panniculectomy did not ease Ms. Brown's back pain. Ms. Brown testified that her family doctor then suggested that the pain could be caused by her breasts, which were large (44DD). Ms. Brown returned to Dr. Baum to discuss a breast reduction in order to see if that might help with her back pain. Ms. Brown testified that Dr. Baum “kept talking about my weight,” and told her “when he was finished with [her breasts] they would look perky”. Ms. Brown thinks that she told him that she was not interested in cosmetic surgery but with help for her back pain. They did not discuss whether breast reduction surgery would help with her back pain.

[28] Ms. Brown testified that her daughter Stephanie Reid drove her to many of her appointments with Dr. Baum, and to hospital on the date of surgery, but Ms. Reid was not present during Ms. Brown's discussions with Dr. Baum about the surgery. Ms. Brown explained that she did not want to put stress on her daughter, so there were things that she would not “let her hear”. Ms. Brown also testified that her partner at the time, Henry Stewart, was not familiar with the details of her surgeries.

[29] Ms. Brown agreed in cross–examination that the only time she did not understand something that Dr. Baum said in their discussions was when he used the term panniculectomy. She asked him to use a “normal” word, which he did – “tummy tuck”.

[30] Dr. Baum asked her if she smoked and she said yes. He did not ask for how long, how much or when she started. When Ms. Brown was asked later in chief whether Dr. Baum asked her to stop smoking before the operation, she said no, adding that they never discussed smoking.

[31] Dr. Baum wanted Ms. Brown to lose weight and referred her to an endocrinologist – Dr. Wong. He did not explain why she had to lose weight, or any problem she could have healing from surgery because of her weight. She felt he was “obsessed” with her weight, but she felt that she was “proportioned”. Ms. Brown recalled that Dr. Wong was “a little Chinese doctor” or dietician of some sort. Dr. Wong wanted to put her on a diet, but Ms. Brown could not afford the diet because she was on disability. She never went back to Dr. Wong.

[32] Following the referral to Dr. Wong, Ms. Brown again saw Dr. Baum on November 6, 2008 about breast reduction surgery. Ms. Brown recalled that Dr. Baum drew a diagram about how he was going to make an incision – he would cut straight down from the nipple area then around the breasts so there would be minimal scarring.

[33] Ms. Brown recalled that Dr. Baum told her that she could lose sensation in her nipples as a result of the breast reduction surgery. He never told her she could lose her nipples altogether. Or the fat in her breasts.

[34] Dr. Baum performed breast reduction surgery on Ms. Brown on March 25, 2009. She recalled that when she came out of surgery, her daughter Stephanie told her that a lady required Stephanie to sign a form on Ms. Brown's behalf. Ms. Brown did not recall Dr. Baum ever asking her to sign anything. In cross-examination, however, she confirmed her signature on the consent form relating to the breast reduction surgery. The consent form read, in part, as follows:

I acknowledge that Dr. Baum has explained to me the nature of the procedure(s), the expected benefits, material risks and material side effects. He/she also explained to me the alternative courses of action and the likely consequences of not having the procedure(s). I fully understand all the information provided to me.

[35] Ms. Brown did not heal properly after the breast reduction surgery. She testified that the stitches opened the next day. Things then went from bad to worse. The wounds would not heal and began to smell terrible. Ms. Brown testified that not even nurses would tend to her wounds because of the smell, and she was left to look after herself. She ended up having multiple additional surgeries. Ultimately, she lost both of her nipples, and her breasts are deformed. In addition, Ms. Brown believes that infection persists in her breasts but she is prepared to live with it rather than undergo yet another surgery. She testified that she continued to smoke during her recovery because she could not stand the smell of her rotting breasts.

[36] Ms. Brown testified that Dr. Baum did not tell her that a possible risk of the surgery was that she could lose her nipples or the fat in her breasts. She explained that had she known these were possible risks, she would never have proceeded with the surgery, even if the surgery might have helped with her back pain. She testified that, while significant, she was managing her back pain through painkillers and marijuana.

[37] I have significant credibility and reliability concerns about Ms. Brown's evidence. Beginning with my concerns about reliability, these include a general problem with memory, an inability to remember significant events, or mis–remembering significant events, and a refusal to accept notorious truths, for example:

• Ms. Brown testified that she fell when she was younger and was in a coma for a period of time. As a result, she has difficulty remembering dates. This was repeatedly demonstrated throughout her evidence.
• The medical records refer to Ms. Brown having had breast reduction surgery in the 1980s. Dr. Baum's operative report for the breast reduction surgery he performed on March 25, 2009, specifically notes that a “Biesenberger” procedure was employed during the previous breast reduction surgery, and he “tried to end the inframammary incision at the same point as the previous lateral scar”. Nonetheless, Ms. Brown repeatedly denied that she had previous breast reduction surgery. She became increasingly incensed at the suggestion that she did, demanding “you tell me when, how and by who?”
• Ms. Brown testified that the panniculectomy was done to alleviate back pain. Dr. Baum testified that this procedure is not done to attempt to alleviate back pain. In Ms. Brown's case, it was done to remove excess skin that was rubbing and sweating and causing rashes. I accept Dr. Baum's evidence in this regard, which was unchallenged. While I do not accept Ms. Brown's evidence about the purpose of the panniculectomy, her memory of the purpose suggests that her back pain was a significant and persistent problem for her.
• Ms. Brown recalled that she had complications as a result of panniculectomy. According to Dr. Baum's records, she did not, and healed normally. I accept Dr. Baum's evidence in this regard, but, again, Ms. Brown's recollection is relevant to how significant the back pain was for her: in her mind at least, she suffered complications from the panniculectomy procedure but was still prepared to do the breast reduction to try and address her back pain.
• When Ms. Brown was cross-examined about inconsistencies between her testimony and a prior affidavit she swore, she claimed that the affidavit was false, and she swore it under “stress and duress”. She clarified in re-examination that she simply meant stress.
• Dr. Wahrman testified that based on Ms. Brown's height (5'5”) and weight (280 to 300 pounds) she met the medical criteria for obesity. Indeed, she fell toward the more extreme end of the obesity scale. When it was put to Ms. Brown that she was obese, she refused to acknowledge this, instead insisting that she did not consider herself obese or even overweight. She considered herself to be “proportioned”.
• It is beyond dispute that smoking is bad for a person’s physical health. When this straightforward proposition was put to Ms. Brown, she refused to agree, noting that smoking eased her tension and she did not consider that it posed a risk to her health. She denied ever seeing the health warning on a package of cigarettes.

[38] Turning to credibility, Ms. Brown's evidence is marred by internal inconsistencies, and inconsistencies with prior statements. For example, Ms. Brown’s evidence about her back pain was a moving target. Ms. Brown initially testified in chief that her back pain was intense – a “serious” 10 on a scale of 1 to 10. She took the pain prescriptions her family doctor gave her, and marijuana. They only relieved her pain “to a point”. At the end of her examination in chief, she testified that the pain would come and go, and she was managing it just fine. It was put to her in cross-examination that her back pain bothered her “non-stop”. She responded that it was “on and off”, but then agreed that she testified during examination for discovery that her back pain was non-stop, and this was the truth. I find that her back pain was non-stop and it was a very significant problem for her.

[39] Similarly, Ms. Brown's evidence about smoking was inconsistent. Ms. Brown initially testified that Dr. Baum asked her whether she smoked, but not how much or for how long. She later testified that they did not discuss smoking at all. In cross-examination she agreed that Dr. Baum asked her whether she smoked and how many cigarettes per day. Based on Dr. Baum's evidence, which I will come to, I find that they did discuss smoking, and Dr. Baum explicitly instructed her to stop smoking beginning at least a month before surgery.

[40] Ms. Brown's evidence was also inconsistent about the number of cigarettes she smoked. In examination in chief, she testified that she currently smoked 3 cigarettes per day, but “back then”, at the time of the surgery, she was “still” smoking maybe 8 cigarettes a day. In cross-examination, however, she agreed that between the tummy tuck and the breast reduction, she reduced the number of cigarettes she smoked per day. I find that she did reduce the number of cigarettes she smoked per day prior to the breast reduction surgery.

[41] Perhaps most importantly, Ms. Brown's evidence does not make sense when considered in light of the other evidence in the case. Ms. Brown agreed that Dr. Baum spoke to her in ordinary language and that she understood him. When he used the word panniculectomy she asked him to explain it and he did: tummy tuck. That was the only word he used that she did not understand. She was clear that he never told her that her weight or her smoking posed risks for the surgery. At the same time, she acknowledged that Dr. Baum sent her to an endocrinologist to help her lose weight before the breast reduction surgery, and that she lost weight before the surgery. Indeed, a fair bit of weight. During her initial consultation with Dr. Baum on March 24, 2008, he noted her weight as “over 325 lbs”. Dr. Wong's consultation reporting letter back to Dr. Baum, dated September 4, 2008, noted Ms. Brown’s weight was 129 kg, or 284 pounds. The anesthetic consultation report done the day before the breast reduction surgery, on March 24, 2009, noted Ms. Brown weighed 240 pounds. And, as noted, Ms. Brown agreed in cross–examination that between the panniculectomy surgery and the breast reduction, she cut down the number of cigarettes that she smoked per day. Given these admitted fundamental changes to her lifestyle, it simply does not make sense that Dr. Baum did not caution Ms. Brown about the importance of getting her weight and smoking under control before proceeding with the surgery. I conclude that Dr. Baum warned her about the risks of smoking and obesity, and that she understood that warning.

[42] For all these reasons I cannot accept most of Ms. Brown's evidence. However, as I have noted, I find parts of it very significant, such as the fact that in Ms. Brown's mind the panniculectomy was done to relieve back pain, and she suffered significant consequences from the surgery, but she was still prepared to undergo breast reduction surgery to try and alleviate her back pain.

Stephanie Reid and Henry Stewart

[43] Stephanie Reid is Diana Brown's daughter. She testified that she was living with her mother at the time of the surgery, together with their dog. She drove her mother to and from many of her mother's appointments with Dr. Baum, and to hospital on the day of the breast reduction surgery. Contrary to Ms. Brown's evidence, Ms. Reid testified that she was present during many of Ms. Brown's meetings with Dr. Baum. Ms. Reid recalled that Dr. Baum did not discuss any risks associated with the surgery; to the contrary, he downplayed any risk it involved. Ms. Reid acknowledged that she was not present during the November 2008 appointment. Ms. Reid also testified that Dr. Baum was aware that her mother continued to smoke after surgery, including while she was struggling with terrible complications. In cross-examination, Ms. Reid denied that Dr. Baum cautioned her mother not to smoke. When she was taken to one of Dr. Baum's post-operative reports relating to a subsequent surgery, in which Dr. Baum noted “I have again instructed her that she should refrain from smoking as I think that this is the cause of the vascular compromise”, Ms. Reid's position was that this statement was a lie. At the end of Ms. Reid's evidence, when asked about Ms. Brown's social life, Ms. Reid corrected her evidence and testified that Henry Stewart was also living with them at the time of the surgery. Ms. Reid also testified that Ms. Brown has trouble remembering dates but otherwise had an excellent memory – better than her own – and does not forget things.

[44] Henry Stewart was in a long-term intimate relationship with Diana Brown at the time of the breast reduction surgery. They met in the late 80s or early 90s and lived together off and on. They were living together in 2008-2009, together with Diana Brown's son, her daughter Stephanie Reid, and their dog. Mr. Stewart explained that the intimate relationship ended after Diana Brown suffered complications resulting from her breast reduction surgery. He explained that Ms. Brown was so depressed that the intimate relationship did not continue.

[45] Neither Stephanie Reid nor Henry Stewart are able to help me. I conclude that neither were present during key discussions between Diana Brown and Dr. Baum. Notwithstanding my concerns with Ms. Brown's evidence, I accept this part of her evidence. Ms. Brown explained that she was not comfortable having her daughter present during the discussions about the procedure, and she also was conscious that her daughter had a lot on her plate, having given birth to a child in January 2009. This is a reasonable explanation. In contrast, Ms. Reid gave a very general account of the discussions, and admitted she was not present for the key discussion in November 2008. In addition, although I believe both Ms. Reid and Mr. Stewart are well meaning, I am concerned that they are trying to support Diana Brown at the expense of being scrupulously accurate. For example, they both name different people as living in Ms. Brown's home in 2008-09. Ms. Reid's evidence about her mother having an excellent memory, apart from dates, verges on the astonishing in light of Ms. Brown's inability to remember significant events like her prior breast reduction surgery.

Defendant's evidence – Dr. Joseph Baum

[46] I will summarize Dr. Baum's evidence, and then explain why I accept it.

[47] Dr. Joseph Baum is a plastic surgeon. He graduated from the University of Toronto medical school in 1976, received his specialty certification in plastic surgery from the Royal College of Physicians and Surgeons of Canada in 1982, and, since 1983, has been practicing at Etobicoke General Hospital (EGH). He estimated that, to date, he has performed 2000 to 3000 breast reductions.

[48] Dr. Baum remembered Diana Brown, but did not have specific memories of their conversations, as they took place 12 years ago. However, he did take notes about their meetings, or wrote reporting letters, documenting their interactions and planned course of treatment. He was able to refresh his memory using this material. He was also able to describe his standard practice. He had no recollection of whether or not Ms. Brown's daughter, Stephanie Reid, was present during his meetings with Ms. Brown.

[49] Dr. Baum performed a panniculectomy on Ms. Brown on February 22, 2008 at EGH. It was done under general anesthetic. It took 2 to 2 ½ hours. He described this procedure in lay terms as a type of “tummy tuck” which involved removing an excess panel of skin from the belly button to the groin crease. The procedure is not, and was not, performed as a cure for back pain. Rather it was performed because Ms. Brown had “maceration”, which Dr. Baum explained involved a panel of skin folding over and getting wet and sweaty.

[50] On March 25, 2008, during a follow–up appointment in relation to the panniculectomy, Diana Brown asked Dr. Baum about a breast reduction because she was experiencing back and neck pain. He made a note that Ms. Brown was 5'5” tall, weighed 325 pounds, wore a 44DD bra and, in addition to the back pain she complained about, she had “shoulder grooving” secondary to mammary hyperplasia. Dr. Baum explained that shoulder grooving is caused by the weight of breasts pulling on bra straps. Dr. Baum also noted that Ms. Brown had a previous breast reduction in the 1980s. He wrote to OHIP the same day, setting out his observations and Ms. Brown's complaint about back and neck pain, and requested authorization for funding for a breast reduction. OHIP authorized the procedure. Dr. Baum explained in cross–examination that the surgery was not cosmetic. At the same time, it was not urgent or necessary. He explained that the “driving force” in terms of the timing was how bad the symptoms were to the patient, and how badly the patient wanted to get on with the surgery.

[51] Dr. Baum testified that during the initial meeting he explained the breast reduction operation to Ms. Brown and the general risks involved, including the risks of undergoing a general anesthetic. He could not remember the precise conversation he had with Ms. Brown, as it occurred almost 12 years ago, but he has a routine that he follows. The fact that Ms. Brown was a smoker and obese had implications for a general anesthetic and he would have explained this. He would then have explained the risk of bleeding and infection, noting that these risks are increased for a smoker and someone who is obese. He prescribed antibiotics prophylactically but even still there was an increased risk of infection. He would also explain that it was very important not to compromise the blood supply to the nipple areola complex. If that happened the nipple and surrounding tissue might necrose or die, and a second operation would be required to reconstruct the nipple. Dr. Baum noted that this is not common. He also explained that the nipple could become numb, and there was risk breast feeding would not be possible.

[52] Dr. Baum reiterated in cross-examination that he discusses the three possible risks to the nipple areola (loss of feeling, lactation and viability) with every patient requesting the surgery. Where relevant, he also points out factors that increase the risks, such as smoking, obesity, diabetes, and connective tissue disorder. It was also part of his “typical preamble” that if there was a problem with bleeding or necrosis, a second surgery could be required. He also would have advised Diana Brown of the possibility that the surgery would not ease her back pain; again, that is part of his routine.

[53] Dr. Baum advised Ms. Brown that she would be “wise” to lose weight before surgery due to the increased risks it brought. In June of 2008 Dr. Baum referred Diana Brown to see Dr. Wong, an endocrinologist, about her weight. He could not specifically recall advising her that her weight was a risk for surgery, but I note that his June 30, 2008, referral letter to Dr. Wong reads “Patient has been advised to lose weight before we proceed with breast reduction surgery”. Dr. Wong wrote back on September 4, 2008, noting “You were concerned that she should lose weight before undergoing breast reduction… A diet and exercise routine was discussed with her. Strategies to reduce weight were discussed with her.”

[54] Dr. Baum saw Ms. Brown again on November 6, 2008, during which time he explained the breast reduction operation again and its risks in Ms. Brown's case. He testified that it is his practice to explain a procedure and its risks twice before surgery. He explains all the risks and benefits at the initial meeting and sends OHIP a request for authorization. He then sees the patient again and gets into the “nitty gritty” of the procedure, including a physical examination and measurements. This occurred at the November meeting. Dr. Baum did not document this discussion in his notes because he wrote a reporting letter to Ms. Brown's family doctor. The letter noted his instructions to Ms. Brown to try to lose weight, and to stop smoking a month before the surgery:

To complicate matters further she is a smoker and I have informed her that she would have to be off cigarettes for a month pre operatively to decrease the risk of infection and wound dehiscence. We will make plans for surgery in the spring and I would suggest that she try her best to get the weight problem under control.

[55] Dr. Brown confirmed that “if I dictated it I did it”. Dr. Brown explained that “wound dehiscence” essentially means poor wound healing; the opening of the wound. He testified that he would have explained the concept in lay terms to Ms. Brown.

[56] During the November 2008 meeting Dr. Baum examined Ms. Brown and was able to confirm, based on the lateral scarring under each breast, that the previous breast reduction was performed using a “Biesenberger” procedure. He testified that re–doing a surgery can increase the risk, but he believed the prior surgery in this case posed minimal risk. He explained that the important part of a breast reduction surgery is to maintain the blood supply to the nipple. The prior surgery was done so long before that any impairment of the blood supply would have recovered. In addition, the procedure he planned to perform targeted a different area of the breast. The Biesenberger procedure takes tissue from the “8 o'clock” position. The procedure he planned to perform takes tissue from the “6 o'clock” position.

[57] Dr. Baum believed that Ms. Brown did lose weight before the surgery, but he did not explicitly inquire. He also did not ask her if she stopped smoking prior to surgery, explaining that he took her at her word that she would. He had no knowledge of the fact that she continued to smoke before the surgery. He agreed that the terrible complications she ended up having were due mainly to smoking. He did not recall asking how long she had been smoking, but did recall that she did not come across as a heavy smoker (which he defined as someone who smokes one to two packs a day).

[58] It was not Dr. Baum's practice to put a numerical percentage on the chance of a procedure being a success, or a complication occurring. He testified that he would have explained that the risks of bleeding and necrosis were higher for Ms. Brown because she was a smoker, but he would not have put a number on that. He explained that his philosophy is that even if the chance of something happening was only 1%, but it ended up happening, the number is 100%.

[59] When it was put to Dr. Baum in cross-examination that he did not contemplate that Ms. Brown would suffer fat necrosis in her breasts following surgery, he responded that this outcome was a possibility, but a “very rare” one. He agreed that it was a serious complication.

[60] Dr. Baum noted that he had many patients who were obese and smokers, with multiple medical problems, who suffered no complications as a result of surgery.

[61] As I indicated at the outset, I accept Dr. Baum's evidence. It was confirmed in many respects, including by his office notes, his consultation request to Dr. Wong, and his November 2008 reporting letter to Ms. Brown's family doctor.

[62] In addition, his evidence accords with what happened. For example, his evidence that he told Ms. Brown to try to lose weight before the surgery is supported, not just by his referral to Dr. Wong, Dr. Wong's report back, and his reporting letter to Dr. Black, but by the fact that Ms. Brown lost a considerable amount of weight before the surgery. As described above, she lost nearly 100 pounds in the year before the surgery.

[63] To some extent, Diana Brown also confirms Dr. Baum's evidence. Her evidence that she recalled that Dr. Baum explained that there was a risk she could lose feeling in her nipples tends to support Dr. Baum's evidence that he discussed the risk to the nipples. It does not make sense to me that Dr. Baum would mention only one of the three possible risks. I accept that he explained all three.

[64] I found that Dr. Baum was careful and honest about what he could remember. For example, when he was asked in cross–examination whether he advised Ms. Brown that her weight posed a risk for surgery, he testified that he did not specifically recall doing so and would have to infer that he did. Similarly, he did not recall separating out the risk of post–operative smoking; rather he explained that smoking could affect healing.

The complications Diana Brown suffered

[65] The issue at trial is liability. Damages are agreed. At the outset of trial, counsel indicated that they accepted the first 17 paragraphs of the summary judgment decided by Justice Mew (Brown v. Baum, 2015 ONSC 849, [2015] O.J. No. 1150, rejecting a limitation period defence, upheld at 2016 ONCA 325, [2016] O.J. 2317 (C.A.)) as facts in the trial. Paragraphs 16 and 17 describe the complications that Ms. Brown suffered following surgery as follows:

[16] Following her surgery, Ms. Brown developed complications. She said that her wound had opened up the following day and she went to the Emergency Department at Brampton Civic Hospital. She saw Dr. Baum at 31 March 2009 and on 14 and 17 April 2009. Dr. Baum's note of the attendance on 14 April 2009 states that Ms. Brown was still complaining of pain both breasts and “?Fat, Necrosis”.

[17] There was another attendance at the Emergency Department on 27 April 2009 and on 6 May 2009 Dr. Baum performed further surgery, noting that “the fat necrosis” had affected both breasts. When examined for discovery Dr. Baum explained fat necrosis as:

A process where there is not enough blood supply going to the tissue. Breast tissue is made of skin, fat breast tissue….but if you lose the blood supply, it's the fat that loses its integrity and if the fat loses its integrity, the fat cells die and that explains what the plaintiff describes as “rotting flesh”.

He went on to say that:

…the fat goes from a solid state to a liquid state that and it's foul smelling…it looks like infection…it's thick, it's yellow, it's terrible looking has a terrible smell to it.

Analysis

Did Dr. Baum disclose the material risks of the breast reduction surgery?

[66] As noted at the outset, the ambit of the duty of disclosure – what risks are material and what must be said about them, and whether there has been a breach of the duty of disclosure, are essentially factual determinations to be decided based on all the circumstances of the case.

[67] Ms. Brown pleaded in her statement of claim that Dr. Baum never advised her that her weight or smoking were in any way “negative factors”. Nor did he ever explain the risks and benefits of the surgery. By the time of closing argument, counsel for Ms. Brown had refined and reframed the complaint: Dr. Baum never advised her of the risk of continuing to smoke post-surgery, and Dr. Baum never specifically advised her of the risk of fat necrosis as opposed to necrosis of the nipple areola complex. I will address each complaint in turn.

[68] I have concluded that Dr. Baum specifically advised Ms. Brown to try to lose weight before surgery, and to stop smoking a month before the surgery. I have also concluded that he explained why. There is no credible evidence before me that she did not understand this advice, or the explanation why she ought to have followed the advice. To the contrary, I am satisfied she did understand the advice and the explanation.

[69] Beginning with the importance of losing weight, I have already noted that Ms. Brown lost nearly 100 pounds in the year between the initial consultation and the surgery. This supports both my conclusion that Dr. Baum explained the importance of losing weight, and that Ms. Brown understood his advice.

[70] Turning to the importance of stopping smoking, I have found that Dr. Baum explained to Ms. Brown, though in lay terms, what he reported to her family doctor after the November 2008 consult: “I have informed her that she would have to be off cigarettes for a month pre–operatively to decrease the risk of infection and wound dehiscence.” Dr. Baum testified that he would not have used the phrase “wound dehiscence” with Ms. Brown, but rather would have used ordinary language like “poor wound healing”. Dr. Baum could not recall whether he specifically told Ms. Brown not to smoke after the surgery. Counsel for Ms. Brown places great weight on this, arguing that Ms. Brown did not know she had to stop smoking after surgery and Dr. Baum was negligent in not telling her. I cannot accept this. If smoking affects wound healing, the prohibition on smoking must surely continue while the wound is actually healing.

[71] In short, I find that Dr. Baum advised Ms. Brown of the significance of her obesity and smoking: both raised the risk of complications arising from the breast reduction surgery, specifically complications arising from a compromise to the blood supply. There is no credible evidence that Ms. Brown did not understand this advice. It was not up to Dr. Baum to do more. I reject the suggestion that he should have ensured that Ms. Brown followed his advice. He was a surgeon, not a parent.

[72] I have accepted Dr. Baum’s evidence that he advised Ms. Brown that the most significant risk from a compromise to blood supply was a risk of damage to the nipple areola complex, specifically, a risk of necrosis or death of this tissue, which would also then give rise to the need for additional surgery. I find that he advised Ms. Brown of this risk, and that the risk was elevated in Ms. Brown's case because she was obese and a smoker.

[73] However, Dr. Baum did not testify or indicate that he specifically advised Ms. Brown of the risk of fat necrosis. He testified simply that the risk of fat necrosis was very low: he agreed that it was possible, but explained that it was very rare. While this risk also materializes as a result of compromised blood supply, and may be related to the nipple areola complex, insofar as the fat may be part of the tissue that makes up the nipple areola complex, I believe it is sufficiently distinct in terms of outcome that Dr. Baum should have told Ms. Brown about it. To put it bluntly, the possibility that the nipple could necrose, or die, and rot off, is not the same as having the fat necrose and liquify and rot away. There was no evidence of exactly which part of the fat in the breasts necrosed, but even if it was only the fat in the tissue making up the nipple areola complex, I conclude that the complication is sufficiently distinct from what could happen to the nipple that it merited specific mention. Particularly as the risk, while still very low, was elevated in Mr. Brown’s circumstances. The complication was very unpleasant, and would give rise to the need for subsequent surgery.

[74] In reaching my conclusion I am mindful of the fact that the surgery was elective: “It is generally accepted that the scope of disclosure is greater where the procedure is elective:” Gerald B. Robertson and Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Carswell, 2017), at p. 179.

Would a reasonable person in Ms. Brown's circumstances have proceeded with the surgery?

[75] I accept Ms. Brown's emphatic evidence that she would never have undergone the breast reduction surgery had she been told there was a risk of fat necrosis, even a remote risk. As she put it, “no human being would go through what he put me through”. She elaborated that if Dr. Baum had suggested this was even a possibility, she “would not even think” of having the surgery. Ms. Brown suffered significant complications from the breast reduction surgery, and I am sorry for her. But I must be careful not to consider the issue of informed consent through the lens of hindsight.

[76] When I remove the lens of hindsight, and consider both whether Ms. Brown, and the reasonable person in her circumstances, would have proceeded with the surgery with full information about the risks, I conclude that the answer is yes:

• Ms. Brown was in significant and persistent back pain. It was “non stop”. The breast reduction surgery offered a possible solution to the pain. The pain was significant enough that, in her mind, she was prepared to undergo not one but two surgeries in order to try and alleviate it (the panniculectomy and the breast reduction), notwithstanding that she had suffered complications as a result of the panniculectomy.
• I have accepted Dr. Baum's evidence that he told Ms. Brown that the risk of complications, including poor wound healing, and necrosis of the nipple areola complex, was elevated as a result of the fact that she was obese and a smoker. And that necrosis of the nipple areola complex would require further surgery. I also found that Ms. Brown understood what she was told: she cut the number of cigarettes she smoked each day, and she lost almost 100 pounds in the year leading up to the surgery.
• It was uncontested that the risk of fat necrosis was very low. I concluded it was material given what a dreadful complication it is, and the fact that the risk of it materializing was elevated in Ms. Brown’s circumstances. Nonetheless Dr. Baum's evidence was uncontested that it remained “very low”, and that it could happen to anyone, including a non-smoker of normal weight.

[77] In all these circumstances, I conclude that both Ms. Brown, and a reasonable person in her situation, would have proceeded with the breast reduction surgery.

[78] It follows that while Dr. Baum did not tell Ms. Brown about the very low risk of fat necrosis, and that he should have done so, this did not result in any damages. Both Ms. Brown, and a reasonable person in her circumstances, would have proceeded with the surgery anyway in order to try and alleviate the non-stop back pain.

[79] If the parties are unable to agree on costs, they shall make their costs submissions in writing as follows: the defendant/respondent’s submissions shall be delivered by April 2, 2020, and the plaintiff’s submissions shall be delivered by April 16, 2020. Each side’s written submissions shall be five pages or less in total, double-spaced, plus any costs outline.

GILLIAN ROBERTS J.

RELEASED: March 11, 2020