DATE: 20050420

DOCKET: C38517

COURT OF APPEAL FOR ONTARIO

RE:

MANSOOR SHAMS (Plaintiff/Appellant) -and- DR. LORNE ROTSTEIN (Defendant/Respondent)

BEFORE:

DOHERTY, CRONK and JURIANSZ JJ.A.

COUNSEL:

Pheroze J.K. Jeejeebhoy

for the appellant

Frank J. McLaughlin and Genevieve Currie

for the respondent

HEARD AND RELEASED ORALLY:

April 15, 2005

On appeal from the judgment of Justice John R. Jennings of the Superior Court of Justice, sitting with a jury, dated June 14, 2002.

E N D O R S E M E N T

[1] The appellant argues that the trial judge erred in his charge to the jury in two main respects: first, by instructing the jury to apply an objective test to the issue of informed consent, thereby removing from the jury’s consideration the appellant’s particular concerns and views regarding his illness and the proposed surgery; and second, by failing to instruct the jury that, in determining whether the appellant gave informed consent to the surgery performed by the respondent, the jury should not have regard to Dr. Asa’s opinion (based on her interpretation of tissue samples after the surgery) that, in fact, the appellant had cancer. We reject these submissions.

[2] The test to be applied on the issue of informed consent is a modified objective test that incorporates both subjective and objective components. Contrary to the appellant’s submission, the trial judge did not instruct the jury to ignore the personal concerns of the appellant. He specifically instructed the jury that it should consider whether a reasonable person in the position of the appellant would have refused the procedure if he or she had been warned of the risks. The trial judge then went on to review for the jury many of the personal concerns that the appellant had expressed. There was no error by the trial judge in this approach.

[3] Moreover, in our view, there was overwhelming evidence here – including the testimony of the appellant himself – establishing that a reasonable person, in the particular circumstances of the appellant, would have consented to the surgery performed.

[4] We also do not agree that the trial judge erred in his instruction regarding the use of Dr. Asa’s evidence. He told the jury that, notwithstanding Dr. Asa’s opinion (formed after the surgery) that the appellant had cancer, the jury was nonetheless required to determine whether the respondent met the applicable standard of care of a reasonably competent general surgeon and, further, that the jury was still required to determine the issue of informed consent. No further instruction regarding Dr. Asa’s evidence was necessary in the circumstances of this case.

[5] In the result, the appeal is dismissed. The respondent is entitled to his costs of the appeal, if sought, on a partial indemnity basis, fixed in the amount of $15,000 inclusive of disbursements and Goods and Services Tax.

“Doherty J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”