Felde v. Vein and Laser Medical Centre et al.
[Indexed as: Felde v. Vein and Laser Medical Centre]
68 O.R. (3d) 97
[2003] O.J. No. 4654
Docket No. C38993
Court of Appeal for Ontario
Moldaver, Borins and MacPherson JJ.A.
December 3, 2003
The defendant doctor performed cosmetic surgery on the plaintiff's lower right eyelid to remove a small white deposit. At the time of the surgery, the plaintiff was 52 years old and single. She had retired from her lengthy employment as a flight attendant, and it was her plan to enrol in a retraining program and start a new career selling cosmetics. Her only sources of income were a small pension and her Registered Retirement Savings Plan. The plaintiff claimed that she felt uneasy about a number of things when she met the defendant for the first time on the day of the surgery, including the clothing that he and his assisting physicians were wearing, the nature of the operating room and the gruff manner in which she was treated by the anaesthetist, but went ahead with the procedure when the anaesthetist impatiently asked her whether she wanted the operation or not. Post-operatively, complications arose, requiring a number of revisionary operations. The plaintiff brought an action against the defendant for damages for negligence. The trial judge allowed the action on the basis of an absence of informed consent to the surgery as a result of the defendant's failure to warn the plaintiff of the material risks associated with the surgery. The trial judge stated". . . a reasonable person in her situation, presented with a full discussion of the material risks associated with blepharoplasty, would not have proceeded with the operation that day with [the defendant]. A reasonable person would . . . have asked for time to consider whether to proceed with the operation." The defendant appealed, arguing that the trial judge's conclusion on the issue of informed consent was suspect because she applied the wrong test with respect to causation.
Held, the appeal should be dismissed.
Per Moldaver J.A. (MacPherson J.A. concurring): The trial judge accurately stated the test to be applied when negligence, resulting from a lack of informed consent, is alleged. She stated that the question was whether an average, prudent person in the plaintiff's circumstances would have consented to the procedure, if the material risks had been disclosed. If the trial judge, in her later statement about the timing of the procedure, was purporting to state that the timing of the surgical procedure will, in all cases, be a material consideration on the issue of causation, that would have constituted an error. Timing of the surgical procedure may or may not be a significant factor with respect to the issue of causation. Whether it is or not will depend on the particular circumstances of the case. In this case, the timing of the surgery was a factor the trial judge could take into [page98 ]account in determining whether a reasonable person in the plaintiff's position would have refused the surgery had the defendant made her aware of the risks. What the trial judge had in mind in arriving at her ultimate conclusion was not a postponement of the surgery to enable the plaintiff to find a doctor in whom she reposed more confidence and with whom she was as likely as not to proceed with the surgery regardless of the risks. Rather, she had in mind a postponement of some considerable length to enable the plaintiff to stabilize her life and obtain a level of economic self-sufficiency that would better equip her to cope with the type of complications that could arise from the initial surgery. The trial judge made no error on the issue of causation.
Per Borins J.A. (concurring): The trial judge understood the modified objective test for causation and properly applied it to the facts that she found. Her carefully considered reasons for judgment disclosed neither a palpable and overriding error nor an error in law. Special considerations affecting the particular patient may play a significant role in the causation analysis. The trial judge recognized that there were special circumstances unique to the plaintiff that led her to conclude that had the plaintiff been adequately informed of the risks of surgery, a reasonable person in her circumstances would not have proceeded on the day of the operation. The trial judge believed that the plaintiff's financial situation, and her intended career change, fell into the category of special circumstances.
APPEAL by the defendant from a judgment for the plaintiff in an action for damages for negligence.
Torts -- Negligence -- Medical malpractice -- Informed consent -- Doctor performing cosmetic surgery on patient's lower eyelid to remove small, benign deposit -- Complications arising post-operatively and patient requiring several revisionary operations -- Trial judge finding that reasonable person in patient's situation, presented with full discussion of material risks associated with procedure, would not have proceeded with operation that day and would have asked for time to consider whether to proceed with operation -- Doctor's appeal dismissed -- Had reasonable person in patient's position been informed of risks, she would have declined surgery at least until she could stabilize her life and obtain level of economic self-sufficiency that would better equip her to cope with potential complications of surgery. Reibl v. Hughes, [1980] 2 S.C.R. 880, 114 D.L.R. (3d) 1, 33 N.R. 361, 14 C.C.L.T. 1, apld Other cases referred to Arndt v. Smith, [1997] 2 S.C.R. 539, 35 B.C.L.R. (3d) 187, 148 D.L.R. (4th) 48, 213 N.R. 243, [1997] 8 W.W.R. 303, 35 C.C.L.T. (2d) 233; John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 O.R. (3d) 304, 223 D.L.R. (4th) 541, 34 B.L.R. (3d) 12, 10 R.P.R. (4th) 98, [2003] O.J. No. 350 (QL) (C.A.), affg (2001), 56 O.R. (3d) 341, 46 R.P.R. (3d) 239 (S.C.J.)
W. Niels Ortved and W. Grant Worden, for defendant (appellant). Paul R. Henry and Robert B. Lawson, for plaintiff (respondent).
[1] MOLDAVER J.A. (MACPHERSON J.A. concurring): -- The appellant, Dr. G. Castillo, is a medical doctor. On January 6, 1997, he performed cosmetic surgery on the lower right eyelid of the respondent, Judith Felde. The surgery involved the removal of a small white deposit under Ms. Felde's right eye.
[2] Post-operatively, complications arose. After consulting with four other specialists, Ms. Felde returned to Dr. Castillo and on June 26, 1997, he performed revisionary surgery to remove some cysts that had developed under her right eye. More complications arose following that surgery and after consulting with a number of specialists, Ms. Felde underwent further revisionary surgery on November 18, 1998. This time, the surgery was performed by [page99 ]Dr. Oestreicher, one of the leading experts in the field. In addition to the revisionary surgery, Dr. Oestreicher performed cosmetic surgery on Ms. Felde's upper eyelids. Following that surgery, complications arose once again. In the end, Dr. Oestreicher was required to perform two more revisionary operations on Ms. Felde, one in late November 1998, the other in October 1999.
[3] In June 1998, Ms. Felde issued a claim against Dr. Castillo and others. With respect to Dr. Castillo, she sought damages for negligence as follows -- one, that he fell below the requisite standard of care in his post-operative care of Ms. Felde and two, that he failed in his duty to disclose to Ms. Felde the material risks associated with the initial surgery.
[4] At the time of the initial surgery in January 1997, Ms. Felde was 52 years old and single. She was in the final stages of a two-year sabbatical that she had taken after retiring in January 1995 from her lengthy employment as a flight attendant with Air Canada. It was her plan, in 1997, to enrol in a retraining program and then commence a new part-time career selling cosmetics. Financially, Ms. Felde was not well-off. Her only sources of income were a small pension from Air Canada and her Registered Retirement Savings Plan.
[5] Ms. Felde's medical history was relatively uneventful. It did, however, reveal four prior procedures between 1967 and 1996, three of which were cosmetic. None, however, reached the magnitude or risk level of the surgery performed by Dr. Castillo in January 1997.
[6] The only other evidence of significance relates to Ms. Felde's apprehension of Dr. Castillo and the procedures he followed. Specifically, she testified that on the day of the surgery, when she met Dr. Castillo for the first time, she felt uneasy about a number of things. These included the type of clothing that he and his assisting physicians were wearing, the nature of the operating room and the gruff manner in which she was treated by the anaesthetist. In short, Ms. Felde felt uncomfortable about the situation and it was only after the anaesthetist asked her, in an impatient tone, whether she "wanted the operation or not" that she agreed to proceed.
[7] The trial judge dismissed Ms. Felde's claim in negligence against Dr. Castillo insofar as it alleged improper post- operative care. She allowed the claim, however, on the basis of an absence of informed consent to the surgery as a result of Dr. Castillo's failure to warn Ms. Felde of the material risks associated with the surgery. Dr. Castillo challenges that finding on appeal, but only insofar as it relates to the issue of causation, not his failure to advise Ms. Felde of the material risks. Specifically, he submits that the [page100] trial judge's conclusion on the issue of the absence of informed consent is suspect because she applied the wrong test with respect to causation. Expressed differently, Dr. Castillo submits that had the trial judge applied the correct test, the result would not necessarily have been the same. Accordingly, he seeks a new trial.[^1]
[8] Although the case is a close one, in the end, I would not interfere with the result. The trial judge gave detailed reasons for judgment. On two occasions, she properly stated the test to be applied when negligence, resulting from a lack of informed consent, is alleged. The first of those statements is found at pp. 14 and 15 [para. 67]:
Liability in negligence for the breach of the duty of disclosure arises only if the breach of the duty is found to have caused damage to the patient. In determining the test for causation, Laskin C.J.C. adopted a modified objective test in Reibl v. Hughes, [1980] 2 S.C.R. 880 (at 898-9). The question that must be determined is whether the reasonable person in the patient's position would have consented to the operation, had the duty of disclosure been met.
[9] The second correct statement is found at p. 27 [para. 112]:
The question here is whether an average, prudent person in the plaintiff's circumstances would have consented to this procedure, if the material risks had been disclosed.
[10] The appellant acknowledges that in those two instances, the trial judge accurately stated the test. He maintains, however, that elsewhere in her reasons, she misstated the test and that in arriving at her conclusion, she applied the wrong test.
[11] Commencing with the misstatement of the test, the appellant points to the following excerpt at p. 25 [para. 103] of the reasons:
The remaining issue is whether the lack of informed consent actually caused her injury. The test for causation set out in Reibl v. Hughes requires the trier of fact to determine "whether a reasonable person in the plaintiff's position would have declined surgery at the particular time" (at 928).
(Emphasis added)
[12] In support of his position that the trial judge applied that test in arriving at her conclusion, the appellant points to the following two passages at pp. 25 and 28 [paras. 107 and 116] of her reasons:
Nevertheless, the fact that Ms. Felde agreed to these procedures does not lead me to conclude that she was the type of person who would have [page101] consented to a blepharoplasty on January 6, 1997, had she been properly informed of material risks.
In my view, a reasonable person in her situation, presented with a full discussion of the material risks associated with blepharoplasty, would not have proceeded with the operation that day with Dr. Castillo. A reasonable person would, in my view, have asked for time to consider whether to proceed with the operation. There was no rush to proceed that day, and there was reason for uneasiness in the setting -- for example, where the surgeon does not wear full hospital greens while operating, and where the whole lead-up to the operation seems rushed. I find that a reasonable person in Ms. Felde's circumstances, properly informed, would not have proceeded on January 6.
(Emphasis added)
[13] Returning to the test with which the appellant takes issue, namely -- whether a reasonable person in the plaintiff's position would have declined surgery at the particular time -- the appellant submits that if the trial judge, in defining the test that way, was purporting to state that the timing of the surgical procedure will, in all cases, be a material consideration on the issue of causation, she was in error. I agree.
[14] Timing of the surgical procedure may or may not be a significant factor with respect to the issue of causation. Whether it is or not will depend on the particular circumstances of the case. Thus, as the appellant points out, on the facts in Reibl v. Hughes, [1980] 2 S.C.R. 880, 114 D.L.R. (3d) 1, the timing of the surgery was central to the issue of causation because the plaintiff maintained that had he been informed of the material risks associated with the surgery, he would have postponed the operation for a period of about 18 months in order to solidify his financial position. That explains why Laskin C.J. laid stress on the timing of the surgery in his analysis of the causation issue. As the Chief Justice pointed out at p. 928 S.C.R.:
Relevant in this case to the issue whether a reasonable person in the plaintiff's position would have declined surgery at the particular time is the fact that he was within about one and one-half years of earning pension benefits if he continued at his job; that there was no neurological deficit then apparent; that there was no immediate emergency making the surgery imperative; that there was a grave risk of a stroke or worse during or as a result of the operation, while the risk of a stroke without it was in the future, with no precise time fixed or which could be fixed except as a guess of three or more years ahead. Since, on the trial judge's finding, the plaintiff was under the mistaken impression, as a result of the defendant's breach of the duty of disclosure, that the surgery would relieve his continuing headaches, this would in the opinion of a reasonable person in the plaintiff's position, also weigh against submitting to the surgery at the particular time.
(Emphasis added) [page102]
[15] Returning to the causation issue in the case at hand, while I do not believe that the timing of the surgery reaches the same critical level as it did in Reibl v. Hughes, I am nonetheless satisfied that it was a factor the trial judge could take into account in determining whether a reasonable person, in Ms. Felde's position, would have refused the surgery had Dr. Castillo made her aware of the material risks. By that, I am not referring to a postponement of the surgery to enable Ms. Felde to find a doctor in whom she reposed more confidence and with whom she was as likely as not to proceed with the surgery regardless of the risks. Rather, I have in mind a postponement of some considerable length to enable Ms. Felde to stabilize her life and obtain a level of economic self- sufficiency that would better equip her to cope with the type of complications that could arise from the initial surgery.
[16] Having considered the reasons of the trial judge, in the last analysis, I am satisfied that she had the second of these scenarios in mind in arriving at her ultimate conclusion. At pp. 27 and 28 [paras. 113-15] of her reasons, after rejecting the notion that Ms. Felde was someone "who was committed to changing her appearance regardless of risks", the trial judge continued as follows:
In my view, a reasonable person in Ms. Felde's circumstances would have had concerns about proceeding with the surgery, had the risks of ectropion, lid retraction, and the possibility of further revisionary surgery been disclosed. Ms. Felde was then 52 years old, single, and about to start a new career as a cosmetics advisor, after taking a two year sabbatical following her retirement with Air Canada. She does not have much money, and had been living on a combination of pension and RRSP's.
The small mass or lump below her eyelid was a minor cosmetic problem that she did not need to have addressed at that time -- or ever. While a satisfactory operation might have improved her appearance and made her look younger, there was a risk of about 15 [per cent] that she would have eyelid problems and a 10 [per cent] chance that she would need revisionary surgery within the year. Each time, the operation would cause swelling and bruising and, therefore, disruption to her life. There was also the risk, which had been disclosed by Dr. Castillo, that she would be dissatisfied with the results, because the surgeon would have to determine how much skin, fat and muscle he could remove and the patient might want more removed than he thought appropriate.
The benefits from the surgery, then, might be an improved appearance if all went well. However, what Ms. Felde sought to correct was not a major problem; rather, it was a minor blemish. Weighed against that possible benefit were the risks of dissatisfaction with the aesthetic result and complications with her eyelids, as well as the possibility of revisionary surgery, with attendant disruption to her life and pain.
[17] Had the trial judge stopped there, I would not have hesitated to dismiss the appeal. It is the next paragraph, however, that causes concern and leads me to question whether the trial [page103] judge may have gone astray in her causation analysis. The passage in question has already been transcribed at para. 12 above. For convenience, it is repeated:
In my view, a reasonable person in her situation, presented with a full discussion of the material risks associated with blepharoplasty, would not have proceeded with the operation that day with Dr. Castillo. A reasonable person would, in my view, have asked for time to consider whether to proceed with the operation. There was no rush to proceed that day, and there was reason for uneasiness in the setting -- for example, where the surgeon does not wear full hospital greens while operating, and where the whole lead-up to the operation seems rushed. I find that a reasonable person in Ms. Felde's circumstances, properly informed, would not have proceeded on January 6.
[18] That passage leaves me with a concern that in addressing the issue of causation, the trial judge may have focussed her analysis on the particular day (January 6, 1997) and the particular doctor (Dr. Castillo), rather than considering it from the point of view of what Ms. Felde would have done had she been told of the risks and taken some time to consider whether she wished to proceed with the surgery or not. In other words, having posed the legitimate question as to what Ms. Felde would have done had she been made aware of the risks and reflected upon them, the trial judge did not provide a direct answer to the critical question, namely, whether a reasonable person, in Ms. Felde's position, would have declined the surgery.
[19] That said, when the reasons for judgment are read fairly as a whole, I think it is apparent, from the findings made by the trial judge at pp. 27 and 28 [paras. 113-15] (reproduced at para. 16 above), that the answer to the critical question would necessarily have been "yes". In other words, had a reasonable person in Ms. Felde's position been informed of the risks, she would have declined surgery, if not altogether, at least for a considerable period of time in order to stabilize her life and obtain a level of economic self-sufficiency that would better equip her to cope with the potential complications of surgery.
[20] Accordingly, I would dismiss the appeal with costs fixed at $15,000 inclusive of disbursements and GST.
[21] BORINS J.A. (concurring): -- I have read the reasons of my colleague, Moldaver J.A., and while I agree that this appeal must be dismissed, I differ substantially from him in how I reach that outcome. Although I appreciate that restraint should be exercised before concurring reasons are written, I find it necessary to write brief reasons to explain the grounds on which I believe the appeal should be dismissed. [page104]
[22] Reading the trial judge's reasons for judgment in their entirety, I am satisfied that she understood the modified objective test for causation adopted by Laskin C.J. in Reibl v. Hughes, [1980] 2 S.C.R. 880, 114 D.L.R. (3d) 1, at pp. 898-900 S.C.R., and properly applied it to the facts that she found. I would, therefore, dismiss the appeal.
[23] The only issue presented by this appeal, and, indeed, the only significant issue at trial, is whether Dr. Castillo's failure to adequately explain the risks of the surgery caused the damages sustained by Ms. Felde. In her causation analysis, the trial judge was required to determine whether Ms. Felde would have opted for the surgery had she been fully and adequately informed of its risks. This involved the weighing of the underlying facts that related to Ms. Felde's unique personal circumstances. The trial judge was then required to apply to the facts the legal standard, which she described as "whether the reasonable person in the patient's position would have consented to the operation, had the duty of disclosure been met". Applying the legal standard, as her ultimate finding of fact she found that Dr. Castillo had caused Ms. Felde's damages.
[24] Whether one characterizes the product of the trial judge's causation analysis as a finding of fact or the determination of a question of mixed fact and law, her carefully considered reasons for judgment disclose neither a palpable and overriding error nor an error in law. In applying this standard of review, I have been guided by the following statement of Weiler J.A. in John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 O.R. (3d) 304, 223 D.L.R. (4th) 541 (C.A.), at p. 306 O.R.; leave to appeal to the S.C.C. refused, 2003 S.C.C.A. No. 145:
The standard of review of a judge's factual findings and inferences drawn from the facts is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, 211 D.L.R. (4th) 577. Questions of mixed fact and law involving the application of a legal standard to a set of facts are generally also subject to a standard of palpable and overriding error. If, however, it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, the error may amount to an error of law, and a standard of correctness will apply.
[25] The Supreme Court of Canada revisited the modified objective test developed in Reibl in Arndt v. Smith, [1997] 2 S.C.R. 539, 148 D.L.R. (4th) 48. The test was thoroughly and carefully discussed on behalf of the majority by Cory J. and in concurring reasons by McLachlin J. There are several passages from their reasons for judgment that are instructive.
[26] After setting out Laskin C.J.'s lengthy discussion of the rationale for a modified objective test in Reibl, at pp. 898-900 S.C.R., Cory J. went on to comment at p. 547 S.C.R.: [page105]
These words are as persuasive today as they were when they were written. The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of 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 the original)
[27] Cory J. continued at pp. 549-50 S.C.R.:
Some of the criticisms directed at the Reibl test may stem from confusion as to what Laskin C.J. intended in his adoption of a modified objective test. The uncertainty surrounds the basic premise that the test depends upon the actions of a reasonable person in the plaintiff's circumstances. Which aspects of the plaintiff's personal circumstances should be attributed to the reasonable person? There is no doubt that objectively ascertainable circumstances, such as a plaintiff's age, income, marital status, and other factors, should be taken into consideration. However, Laskin C.J. did not stop there. He went on and stated that "special considerations" affecting the particular patient should be considered, as should any "specific questions" asked of the physician by the patient. In my view this means that the "reasonable person" who sets the standard for the objective test must be taken to possess the patient's reasonable beliefs, fears, desires and expectations. Further, the patient's expectations and concerns will usually be revealed by the questions posed. Certainly, they will indicate the specific concerns of the particular patient at the time consent was given to a proposed course of treatment. The questions, by revealing the patient's concerns, will provide an indication of the patient's state of mind, which can be relevant in considering and applying the modified objective test.
(Emphasis added)
[28] In her concurring reasons, McLachlin J. explained the modified objective test at pp. 573-74 S.C.R.:
Having rejected both a purely subjective and a purely objective approach, Laskin C.J. crafted a test that fell between the two, the "modified objective" test. While approaching the issue of what the patient would have done objectively, the judge should take into account "special considerations affecting the particular patient" (p. 898). This would, in his view, avoid the problem of leaving the matter of causation entirely in the surgeon's hands: "The patient's particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon's recommendation" (p. 899). At the same time, consideration of all factors that might have "reasonably" affected the decision avoids exclusive reliance on the plaintiff's assertion at trial.
While "the patient's particular concerns" at the time should be considered (pp. 899-900) (for example, the judge might consider specific questions which the patient may have asked, evincing specific concerns (p. 899)), they must be "reasonably based" to avoid excessive subjectivity. Thus [page106] "fears which are not related to the [undisclosed] material risks would not be causative factors". Summing up, Laskin C.J. stated (at p. 900):
In short, although account must be taken of a patient's particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.
There is little profit in debating whether the test Laskin C.J. had in mind should be labelled objective or subjective. Suffice it to say it contains elements of both the subjective and objective and has been read in different ways. Two assertions can, however, be ventured. First, the Court was concerned to ensure that the plaintiff's particular concerns and circumstances be considered. To hold otherwise would be to virtually place the outcome of the causation inquiry in the hands of the physician. Second, the Court was concerned to ensure that the plaintiff's subjective assertion of what she would have done had she been properly advised be tested "in terms of reasonableness". To hold otherwise would give undue weight to the plaintiff's hindsight assertion that she would have acted in a way that supports her claim for damages. The approach suggested above -- that causation is a question of fact for the trial judge to determine on all the evidence including the plaintiff's assertion at trial examined in the light of her circumstances, mind-set and the medical advice she would have received at the time -- satisfies both these concerns
(Emphasis added)
[29] In my view, it is significant that both Reibl and Arndt recognize that "special considerations affecting the particular patient" may play a significant role in the causation analysis. Indeed, in Reibl, as pointed out by Laskin C.J., the relatively short time in which Mr. Reibl's pension would vest constituted a special consideration that properly led the court to conclude that had Mr. Reibl been adequately informed of the risks of the surgery, he would not have opted for it at the time that it was performed. As I will explain, in this case the trial judge recognized that there were special circumstances unique to Ms. Felde that led her to conclude that had Ms. Felde been adequately informed of the risks of surgery"a reasonable person in Ms. Felde's circumstances would not have proceeded on January 6." In conducting her analysis and in applying the test, it is apparent that the trial judge recognized the similarity between the facts of this case and those of Reibl. She applied the analysis employed by Laskin C.J. in Reibl. As well, she adopted the language that he used in finding as a fact that Dr. Castillo caused Ms. Felde's damages.
[30] Throughout her reasons for judgment, the trial judge made a number of findings of fact relevant to her causation analysis. She found that Ms. Felde had retired on January 1, 1995 with a small pension from Air Canada, on which she had lived for two years together with drawing from her RRSPs while she took a sabbatical. She had planned to start a new career selling [page107] cosmetics part-time at the end of her sabbatical, which coincided with the time of the surgery. As a result of the complications from the surgery, she was unable to start her new career thereby sustaining damages in the form of lost income.
[31] The trial judge also found that Ms. Felde was "a nervous person" and that she was nervous on the day of the surgery. She also found that Ms. Felde came across "as somewhat unsure of herself, deferential and wanting to please". In addition, the trial judge found that Ms. Felde was neither aggressive nor combative. These characteristics led the trial judge to conclude that Ms. Felde was "uncertain" about her decision to proceed with the surgery.
[32] In para. 103, the trial judge, who had earlier discussed the test of causation adopted in Reibl and affirmed in Arndt, quoted from Reibl, at p. 928 S.C.R. and stated that the test required that she determine "whether a reasonable person in the plaintiff's position would have declined surgery at the particular time". In the next paragraph, the trial judge noted:
Ms. Felde testified that she would not have gone ahead with surgery that day, had she known of the risks of eyelid problems and the possible need for revisionary surgery, since the blemish was too minor.
It was the manifestation of the risks of which Ms. Felde had not been informed that prevented her from earning the income that she had planned on earning in her new career at the conclusion of her sabbatical.
[33] The trial judge's principal factual findings are in paras. 112-17 of her reasons for judgment. I find it helpful to reproduce these findings so that they can be considered contextually:
The question here is whether an average, prudent person in the plaintiff's circumstances would have consented to this procedure, if the material risks had been disclosed. Ms. Felde was not a sophisticated consumer of cosmetic surgery. She had had a patch of skin removed in 1967, electrolysis to remove some unwanted hair, and laser treatments to repair a resulting scar in 1997. Otherwise, her surgical treatments (removal of a cyst on the eyelid and a hysterectomy) were for medical reasons. This does not suggest a person who was committed to changing her appearance regardless of risks. Although it is clear that she cares about how she looks, a blepharoplasty is cosmetic surgery at a different level of magnitude and risk from the cosmetic procedures that she had had before.
In my view, a reasonable person in Ms. Felde's circumstances would have had concerns about proceeding with the surgery, had the risks of ectropion, lid retraction, and the possibility of further revisionary surgery been disclosed. Ms. Felde was then 52 years old, single, and about to start a new career as a cosmetics advisor, after taking a two year sabbatical following her retirement with Air Canada. She does not have much money, and had been living on a combination of pension and RRSP's. [page108]
The small mass or lump below her eyelid was a minor cosmetic problem that she did not need to have addressed at that time -- or ever. While a satisfactory operation might have improved her appearance and made her look younger, there was a risk of about 15 [per cent] that she would have eyelid problems and a 10 [per cent] chance that she would need revisionary surgery within the year. Each time, the operation would cause swelling and bruising and, therefore, disruption to her life. There was also the risk, which had been disclosed by Dr. Castillo, that she would be dissatisfied with the results, because the surgeon would have to determine how much skin, fat and muscle he could remove and the patient might want more removed than he thought appropriate.
The benefits from the surgery, then, might be an improved appearance if all went well. However, what Ms. Felde sought to correct was not a major problem; rather, it was a minor blemish. Weighed against that possible benefit were the risks of dissatisfaction with the aesthetic result and complications with her eyelids, as well as the possibility of revisionary surgery, with attendant disruption to her life and pain.
In my view, a reasonable person in her situation, presented with a full discussion of the material risks associated with blepharoplasty, would not have proceeded with the operation that day with Dr. Castillo. A reasonable person would, in my view, have asked for time to consider whether to proceed with the operation. There was no rush to proceed that day, and there was reason for uneasiness in the setting -- for example, where the surgeon does not wear full hospital greens while operating, and where the whole lead-up to the operation seems rushed. I find that a reasonable person in Ms. Felde's circumstances, properly informed, would not have proceeded on January 6.
However, Ms. Felde did have the operation that day, and she experienced well-known complications that are material risks of the surgery -- lid retraction, scleral show and the need for revisionary surgery -- which were not properly disclosed. Therefore, I find that Dr. Castillo is liable to her for damages caused by the breach of his duty of disclosure on January 6, 1997.
(Emphasis added)
[34] From a contextual examination of the trial judge's causation analysis, it is clear that her principal finding of fact is in para. 113 where she pointed out the negative effect on Ms. Felde's financial situation should the undisclosed risks of the surgery occur. Reading the trial judge's reasons in their entirety, it is apparent that she equated Ms. Felde's financial situation to that of Mr. Reibl. Just as Laskin C.J. did in Reibl, she believed that Ms. Felde's financial situation, and her intended career change, fell into the category of "special circumstances". In the result, in concluding her causation analysis she took into account Ms. Felde's financial situation as it existed on the day of the surgery in finding that Dr. Castillo caused Ms. Felde's damages. Indeed, in articulating her finding, the trial judge adopted the language of Laskin C.J. in Reibl. In finding that Dr. Castillo caused Ms. Felde's damages, I am satisfied that she understood and correctly [page109] applied the modified objective test to the circumstances of this case and that she attached proper weight to the subjective aspect of the test.
[35] In summary, I am satisfied that the trial judge understood and properly applied the modified objective test in concluding that Dr. Castillo caused Ms. Felde's damages. As in Reibl, she identified "special circumstances" unique to Ms. Felde's situation and applied the test in the context of those circumstances in her reference to the date of the surgery. Just as the timing of the surgery in Reibl was significant to Mr. Reibl because of the potential impact of the risks of the surgery on his financial circumstances, the timing of the surgery was also significant in view of Ms. Felde's financial situation. Had she been adequately informed of the risks, she would have opted against the surgery rather than undergoing it at the particular time.
[36] Accordingly, I would dismiss the appeal with costs as proposed by Moldaver J.A.
Appeal dismissed.
[^1]: On the basis of the trial record, the appellant concedes that had the trial judge applied the correct test, she could have found negligence on the basis of a lack of informed consent. Accordingly, he does not press for a dismissal of the claim.