DATE: 2003-11-20

DOCKET: C37869

COURT OF APPEAL FOR ONTARIO

RE: JULIE NICHOLS (Plaintiff) (Appellant) – and – DR. DOUGLAS YOUNG (Defendant) (Respondent)

BEFORE: McMURTRY C.J.O., WEILER and SHARPE JJ.A.

COUNSEL: Donald H. Rogers and Diane G. Craig for the appellant

Darryl A. Cruz and Carole G. Jenkins for the respondent

HEARD: November 7, 2003

On appeal from the order of Justice Katherine E. Swinton of the Superior Court of Justice dated February 12, 2002.

E N D O R S E M E N T

[1] The issue in this medical malpractice case is whether the trial judge properly applied the test for informed consent. There is no issue that the trial judge properly stated the test. The test is whether, on a balance of probabilities, a reasonable person in the appellant’s position would have consented to the treatment if all appropriate risks had been disclosed. This involves consideration of (1) whether there has been adequate disclosure of the nature of the treatment and its risks, and (2) whether the lack of disclosure caused the damage to the patient. See Reibl v. Hughes (1978), 21 O.R. (2d) 14 at 26, (Ont. C.A.), rev’d on other grounds, 1980 23 (SCC), [1980] 2 S.C.R. 880; Arndt v. Smith, [1997] 2 S.C.R. 539; Brassard v. Germain (1993), 65 O.A.C. 311.

[1] The facts giving rise to this appeal are not seriously in dispute and may be summarized as follows. On December 18, 1997, Julie Nichols had an appointment with Dr. Young. Her mother, Cheryl Nichols, accompanied her. Dr. Young had been Julie Nichols’ family physician since she was very young and had treated her mother since May 1979. Julie Nichols asked Dr. Young about the possible use of birth control pills because she had a history of painful periods and because she had acne. At the time, she was not sexually active and did not need birth control.

[2] Cheryl Nichols had once briefly taken birth control pills but was taken off them because swelling developed in her leg. Cheryl Nichols had been advised by Dr. Young not to take birth control pills because of problems with her blood. Julie Nichols advised Dr. Young that both her grandmother and grandfather had suffered from blood clots and that her aunt could not take birth control pills because of blood clots. All three had been on Coumadin (a blood thinner). Julie and Cheryl Nichols both asked Dr. Young whether it was appropriate for him to prescribe birth control pills in the face of that family history. He purportedly made a reassuring comment and did not discuss the risks associated with birth control pills before prescribing them. He told Julie to read the pamphlet that came with the pills, which she did.

[3] Julie Nichols began to take the pill shortly after the appointment. In March of 1998, she began to experience pain in her rib cage on the left side. On March 18, 1998, Dr. Young saw Julie Nichols and told her she had pneumonia. On March 24, 1998, Julie Nichols’ right leg was a light blue-grey colour, her foot was very swollen and she could not lift the leg or bend it. The next day, Dr. Young diagnosed Julie Nichols with deep vein thrombosis (DVT) and pleural effusion (that is, fluid between the wall of the chest and the outside of the lung).

[4] Julie Nichols was sent to Brantford General Hospital where she remained for a week to 10 days. As a result of the DVT, Julie Nichols has developed post-phlebitic syndrome, which is a chronic and progressive disease. She is on a blood thinner and has her blood monitored regularly. She experiences a great deal of pain and her ability to sit and stand for prolonged periods of time has been affected. She has discovered that she has a condition called Factor V Leiden and that this condition increased her risk of DVT.

[5] Julie Nichols brought an action claiming that Dr. Young was negligent in three ways: in his prescription of the birth control pill; in his failure to diagnose a pulmonary embolism in March 18, 1998; and in his failure to treat her promptly on March 24, 1998. In addition, Julie Nichols claimed there was a lack of informed consent when Dr. Young prescribed the birth control pill for her without explaining the risk of blood clots associated with its use.

[6] The trial judge made the following findings of fact:

(a) There was no history of thromboembolism in the family of Julie Nichols before the pill was prescribed by Dr. Young;

(b) There was no contraindication for prescribing the pill when Dr. Young prescribed it;

(c) At that time there was no reason to think that Julie Nichols was at an increased risk of clotting because of her family history;

(d) Julie Nichols had medical reasons that justified the prescription of the birth control pill and the prescription was in accordance with standard practice to treat Julie Nichols conditions;

(e) Julie Nichols risks associated with the birth control pill were those of the general population;

(f) Julie Nichols had some knowledge of a risk of blood clots associated with the birth control pill at the time she accepted the prescription;

(g) She read the reference to blood clots in the brochure for the medication and she continued to use it without asking Dr. Young for further details; and

(h) Serious complications from the birth control pill in the general population are rare for someone of Julie Nichols’ age and habits.

[7] The trial judge concluded that Dr. Young met the standard of care when he prescribed the pill to Julie Nichols. She further held that Julie Nichols failed to prove, on a balance of probabilities, that she suffered from a pulmonary embolism on March 18, 1998 and that Dr. Young therefore met the standard of care in the treatment provided on March 18. The treatment of the DVT was also found to be sufficiently prompt so that Dr. Young met the standard of care. These conclusions are not under appeal.

[8] In relation to the issue of informed consent the trial judge found that there was a lack of informed consent with respect to the prescription of the birth control pill because Dr. Young did not adequately discuss the risk of blood clots in the general population for a person taking birth control pills. The trial judge found, however, that a reasonable person in Julie Nichols’ position would have taken the birth control pill had she been properly informed about the level of risk. As such, the trial judge concluded that the lack of informed consent did not cause any injury. This last conclusion is the subject of this appeal.

[9] Julie Nichols’ counsel submits, apparently for the first time on this appeal, that the trial judge did not properly apply the test for informed consent because she failed to consider a relevant factor. Specifically, because Cheryl Nichols suffered from superficial vein thrombosis (varicose veins) and given the Nichols’ family history, the appellant submits there was an increased risk of Julie Nichols suffering superficial vein thrombosis from taking the birth control pill. As a result, Julie Nichols’ counsel submits that the trial judge erred by failing to give proper weight to the subjective aspect of the test and in concluding that a reasonable person in Julie Nichols’ position would have taken the birth control pill.

[10] One of Dr. Young’s experts, Dr. Yao, gave evidence about superficial vein thrombosis. He testified that a person who uses estrogen compounds including birth control pills has a two to four fold increased risk of venous thrombosis. This referred to deep venous thrombosis as the field of superficial venous thrombosis is largely understudied because it is so common in comparison to deep venous thrombosis. While acknowledging that superficial venous thrombosis can be uncomfortable and an unpleasant thing to have, Dr. Yao stated, “We do make a clear distinction between superficial and deep, and the reason we make a distinction is because superficial venous thrombosis is very common, DVT is much rarer, and there is no evidence that within family groups that superficial venous thrombosis, because it doesn’t lead to any significant sequela is something we worry very much about.”

[11] The focus of the evidence at trial was on deep venous thrombosis because of the consequences of this risk and the unfortunate occurrence of deep venous thrombosis to Julie Nichols. There is a lack of evidence concerning increased risk of superficial venous thrombosis to Julie Nichols as a result of her family history. There is no evidence from Julie Nichols that she would not have taken the birth control pill had she known about the risk of superficial venous thrombosis.

[12] We cannot accept the appellant’s submission that the trial judge erred in her conclusion that a reasonable person in Julie Nichols’ circumstances would have taken the birth control pill if she had been properly advised of its risks. The appeal is dismissed.

[13] In all of the circumstances, we would not award any costs.

“R. Roy McMurtry C.J.O”

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A.”