COURT OF APPEAL FOR ONTARIO

DATE: 20000223

DOCKET: C29577

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

[1] When the appeal began, counsel advised that she was

abandoning the argument respecting res ipsa loquitur.

[2] The 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.

[3] The 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.

[4] As 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.

[5] The appeal must, therefore, be dismissed with costs.

“G.D. Finlayson J.A.”

“J.M. Labrosse J.A.”

“S.T. Goudge J.A.”