CITATION: Huisman v. MacDonald, 2007 ONCA 391
DATE: 20050525
DOCKET: C43761
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., GILLESE and ARMSTRONG JJ.A.
B E T W E E N :
STIENTJE HENDERIKA HUISMAN, HINDERIKUS HARMANNUS HUISMAN, ANNA HUISMAN-HOLTKAMP, TALJE HUISMAN AND LUIKEN EVERT HUISMAN, BY HIS LITIGATION GUARDIAN ANNA HUISMAN-HOLTKAMP
David I. W. Hamer and Awanish Sinha, for the appellant, Dr. Steven J. MacDonald
Plaintiffs (Respondents)
- and -
DR. STEVEN J. MACDONALD, DR. J. TAYLOR, DR. A. WHYNOT AND LONDON HEALTH SCIENCES CENTRE
Brian J.E. Brock and Stephen A. Mullings, for the respondents
Defendants (Appellants)
Heard: December 11 and 12, 2006
On appeal from the judgment of Justice Lynne Leitch of the Superior Court of Justice dated May 31, 2005.
ARMSTRONG J.A.:
[1] The plaintiff, Stientje Huisman (known as Esther Huisman), suffered from hip dysplasia. She consulted the defendant, Dr. Steven J. MacDonald, an orthopaedic surgeon, concerning this condition. Dr. MacDonald recommended that she undergo a left periacetabular Ganz pelvic osteotomy (“Ganz pelvic osteotomy”) to alleviate her symptoms and to delay the need for a hip replacement. Dr. MacDonald believed that the Ganz pelvic osteotomy afforded Ms. Huisman her best chance to return to her active participation in sports and in particular to competitive tennis. The Ganz pelvic osteotomy is complex surgery which in non-technical terms involves restructuring the socket of the hip joint (the acetabulum) located in the pelvis in order to provide a better fit for the head of the femur (thigh bone).
[2] Dr. MacDonald performed the recommended surgery on Ms. Huisman in June 1999. Unfortunately, during the course of the surgery, she suffered injury to her sciatic nerve which resulted in the paralysis of her left foot – commonly referred to as foot drop. Ms. Huisman, her mother and other members of her family sued Dr. MacDonald and others for medical malpractice. The trial judge, Justice Lynne Leitch of the Superior Court of Justice, found that the surgery was performed competently. However, she found that the doctor did not properly inform Ms. Huisman of the risk of damage to her sciatic nerve and her consequent risk of foot drop. The trial judge concluded that a reasonable person in the position of Ms. Huisman would have refused the recommended surgery had the risks of permanent nerve damage and its consequences been disclosed to her. The trial judge therefore found Dr. MacDonald liable in damages to Ms. Huisman and her mother. The other family members and the defendants other than Dr. MacDonald were dropped from the action before the trial.
[3] Dr. MacDonald appeals from the judgment of the trial judge.
THE BACKGROUND FACTS
[4] Ms. Huisman was born in Holland on July 28, 1980. She moved with her family to Canada when she was 16 years old. She attended Ridgetown High School. She was an excellent student and participated in five high school sports. Her passion was tennis and she regularly travelled to London three to four times a week to train and participate in tournaments. She also played in tennis tournaments in Windsor and Toronto. During her final year of high school, 1998 – 1999, she received an offer of a tennis scholarship at a college in Nashville, Tennessee.
[5] Ms. Huisman suffered from hip dysplasia in both her hips which was diagnosed in Holland at the age of 12. At that time, she did not suffer significant pain and no treatment was recommended. After arriving in Canada, her problem became symptomatic. She began to suffer from pain in her hips. As a result, she saw Dr. John Turnbull, an orthopaedic surgeon in Chatham in December 1997. Dr. Turnbull recommended against surgery at that time but suggested that she return to see him in one year.
[6] When Ms. Huisman returned to see Dr. Turnbull in December 1998, the condition of her left hip had worsened. Dr. Turnbull referred Ms. Huisman to Dr. MacDonald at the University Hospital in London to assess potential surgical intervention by way of an acetabular pelvic osteotomy.
[7] Dr. MacDonald’s consultation note to Dr. Turnbull reported Ms. Huisman’s history as follows:
Over the last several years she has had a gradual progression in her symptoms. You actually saw her in December of 1997 at which point she was doing reasonably well, but over the last year she has noticed quite a significant progression in her symptoms. She is very active in various sports such as tennis, badminton, volleyball and basketball. She does sports at least for one and one-half hours per day. She notices quite significant pain afterwards with the hip being stiff and sore particularly with the groin. If she is not as active in sports the pain is better and if she does no sports then the pain is significantly improved. She states, however, even with walking after an hour or two in the mall she has increasing pain and discomfort in her hip. She does not have any nocturnal pain, but does have difficulty going to sleep. On top of her chronic pain, she does have acute exacerbations with intermittent sharp groin pain. She is on no current medications.
…She does remain quite active in sports, however does so at a price. She has pain after really almost any type of prolonged activity including even walking. She has had quite significant progression in her symptoms over this last year and this certainly coincides with her radiographic changes.
[8] As a result of his physical examination and a review of the x-rays of her left hip, Dr. MacDonald concluded that Ms. Huisman had significant acetabular dysplasia and that there were signs of early arthritis in the hip joint. In a comparison of her 1999 x-rays with 1995 x-rays, he concluded that the cartilage space in the joint had been reduced by less than one-half, which he described as a very significant change and was an indication of the onset of arthritis. In short, she had a significant problem.
[9] Dr. MacDonald told Ms. Huisman and her mother, who attended the appointment with her, that there had been quite a change since the previous year’s check-up and that her left hip was showing some serious deterioration. Dr. MacDonald discussed three options to address the problem: do nothing, a femoral osteotomy and a pelvic osteotomy.
(i) Do nothing and wait and see
[10] Both Ms. Huisman and her mother recalled that the do nothing option involved waiting to see how her hip progressed and that she would have to limit her activities when she felt pain in her hip. Eventually she would require a hip replacement.
(ii) The femoral osteotomy
[11] This procedure involved cutting through the femur in order to change the angle in which the femur would sit in the socket. Dr. MacDonald said that he did not recommend this procedure because, while it was a good treatment for patients who have the majority of changes on the femoral side, Ms. Huisman had the majority of her dysplasia on the pelvic side.
(iii) The Ganz Pelvic Osteotomy
[12] Ms. Huisman recalled that Dr. MacDonald referred to the procedure as a pelvic osteotomy without reference to “Ganz”. She recalls Dr. MacDonald telling her that it was a complex procedure which the doctor had learned in Switzerland where the procedure was developed. He told her that the procedure had only been available in Canada for about 15 years and only two doctors (including Dr. MacDonald) did the procedure in Canada. If everything went well, she should have no pain or reduced pain and if, after recovery, she had no pain, she would be able to play competitive tennis again.
[13] Ms. Huisman recalled that Dr. MacDonald explained that in the area of the surgery, there were many arteries, veins and nerves and that this type of surgery was riskier than the femoral osteotomy because of the proximity of the nerves and arteries. At that point, Ms. Huisman asked Dr. MacDonald whether he ever had any patients who had suffered nerve damage after this surgery. Dr. MacDonald responded that he had not had any patients who had suffered nerve damage from this procedure. Ms. Huisman testified that she “wanted to make sure, you know, that the risk was not too high … so from that I was confident that there wasn’t, you know, not … not a very high risk for that to happen.”
[14] Ms. Huisman said that Dr. MacDonald did not tell her that she could suffer nerve damage which could result in a foot drop. Dr. MacDonald did not tell her that one of the three cuts that he would make into the pelvis was a blind cut. She asked Dr. MacDonald if he had experience in this kind of surgery and he said that he did. Dr. MacDonald testified that at that point he had done 8 to 10 such surgeries. Ms. Huisman testified that if she had known that he had only done 8 to 10 of these procedures, she would have reconsidered her decision. She also testified that if she had been told of the risk of irreversible paralysis to her leg she would not have had the surgery.
[15] Ms. Huisman’s mother provided generally corroborative evidence of the discussion with Dr. MacDonald.
[16] Dr. MacDonald testified that he did not have an independent recollection of his discussion with Ms. Huisman and her mother in April 1999 in respect of each of the risks involved in the Ganz pelvic osteotomy, although he had a general recollection of discussing risks. He was satisfied that he would have provided Ms. Huisman and her mother with a full explanation of the risks, based upon his usual practice, which included advising of the risk of damage to the sciatic nerve and the consequent serious complication of foot drop. Dr. MacDonald relied upon his consultation note made immediately after the discussion with Ms. Huisman and her mother, which stated in part:
The risks of surgery were discussed at great length with her including the risks of anaesthesia, infection, DVT, pulmonary embolism, failure of the hardware, delayed union, mal-union and non-union, neurovascular injury, progression of arthrosis and failure to resolve her symptoms.
[17] Dr. MacDonald testified that in his usual discussion, he would not have used the term “neurovascular injury”. He would discuss the risks of injury to the sciatic nerve and the possibility of foot drop. He would explain that most of the time injury to the nerves is not permanent but sometimes it may be.
[18] Dr. MacDonald left the room for about five minutes so that Ms. Huisman and her mother could have a private discussion. When the doctor returned, Ms. Huisman advised that she wished to proceed with the proposed surgery. Ms. Huisman had previously decided that she would forego the tennis scholarship in order to deal with her hip dysplasia. Ms. Huisman testified that doing nothing was not an option. Ms. Huisman’s mother testified about the decision to proceed with the surgery as follows:
Actually, it was not a very, it was not even that hard to make a decision, ‘cause Esther wanted to go back to tennis, and he made it very clear to us that the only option, that would do that for her, would be the pelvic osteotomy.
I think she had a lot of pain almost every day.
[19] The surgery was performed by Dr. MacDonald on June 23, 1999. After the surgery, Ms. Huisman was unable to wiggle the toes of her left foot. She developed a severe left sciatic nerve palsy post-operatively.
[20] On June 26, 1999, Dr. MacDonald performed a second surgery during which he removed a bone splinter which had pierced the sciatic nerve. Unfortunately, the problem with Ms. Huisman’s sciatic nerve did not improve significantly. In the years following the surgery, she had difficulty walking. She was unable to resume her tennis career or participate in other sports. She began to suffer stress fractures in her left foot. Eventually, her left leg was amputated below the knee on October 7, 2003, which provided her with considerable relief and enabled her to walk much better with a prothesis.
[21] Ms. Huisman attended the University of Western Ontario in the fall of 1999 and eventually graduated four years later with a degree in kinesiology. She has recovered remarkably well from her numerous set-backs and, fortunately for her, she has an extremely positive outlook on life. Nevertheless, she continues to experience a significant disability and, of course, was unable to return to competitive tennis and other sports.
THE EXPERT EVIDENCE
[22] Not surprisingly, a number of expert witnesses testified at trial. All of the expert witnesses possessed impressive qualifications. Counsel for Ms. Huisman called Dr. John Wedge, an orthopaedic surgeon at the Hospital for Sick Children in Toronto who had expertise in hip dysplasia and pelvic osteotomies. Counsel for Dr. MacDonald called Dr. Donald Garbuz and Dr. Michael Millis. Dr. Garbuz of the University of British Columbia in Vancouver is an orthopaedic surgeon who is also an expert in the diagnosis and treatment of hip dysplasia. Dr. Garbuz is the other Canadian doctor who performed the Ganz pelvic osteotomy. Dr. Millis is an orthopaedic surgeon from Harvard University in Cambridge, Massachusetts who also has an expertise in hip dysplasia. He is experienced in the performance of the Ganz pelvic osteotomy. At the time of trial, he had performed 540 such procedures.
[23] The trial judge concluded that all three orthopaedic surgeons agreed with Dr. MacDonald’s assessment of Ms. Huisman’s condition on April 20, 1999.
[24] Dr. Wedge was familiar with the Ganz pelvic osteotomy but did not perform it. However, he had no objection to this procedure being employed in Ms. Huisman’s case. He regarded the Ganz procedure as more prone to sciatic nerve injury. Dr. Wedge would have performed a different kind of pelvic osteotomy which he thought was suitable for Ms. Huisman’s condition and was less risky. The particular procedure he would have employed was one developed by him at the Hospital for Sick Children but had not been published.
[25] Dr. Wedge conceded in cross-examination that all pelvic osteotomies put the sciatic nerve at risk in one way or another. He testified that in pelvic surgery, the sciatic nerve is at risk of temporary palsy at a rate of 1.3% to 9.5%. The risk of permanent nerve damage is at the rate of 0% to 1.4%.
[26] Dr. Wedge was asked his opinion of the risk of nerve damage from the performance of hip replacement surgery. He agreed in cross-examination that peripheral nerve lesions in primary total hip replacements are evident at a rate of .6% to 1.3%. Dr. Wedge testified that in a revision of a total hip replacement, the rate of nerve injury is up to 7.5%. In further cross-examination, Dr. Wedge estimated that a risk of permanent sciatic nerve injury with total hip replacement is around 1% to 2%. Risk of neuro-vascular injury increases with each subsequent revision.
[27] Dr. Wedge testified that Ms. Huisman was at an increased risk of nerve injury if she had a total hip replacement given her pre-existing dysplasia.
[28] Dr. Wedge and all of the experts agree that Dr. MacDonald was under an obligation to explain the risk of permanent nerve damage to Ms. Huisman if he proceeded with the Ganz pelvic osteotomy, although each of the experts appears to have had a different way of explaining the risk to their own patients.
[29] Dr. Garbuz, at the time of trial, had done 500 hip replacements and 700 to 800 hip revisions. In none of those cases had he experienced sciatic nerve palsy. Like Dr. MacDonald, he had trained under Dr. Ganz in Bern, Switzerland, where he learned the Ganz procedure. In Vancouver, he had performed 130 Ganz procedures and had experienced 5 partial sciatic nerve palsies.
[30] Dr. Garbuz testified that the appropriate treatment for Ms. Huisman’s condition was the Ganz pelvic osteotomy. He would not have recommended the procedure suggested by Dr. Wedge.
[31] Dr. Millis, from his review of Ms. Huisman’s x-rays, offered the opinion that Ms. Huisman suffered from moderately severe hip dysplasia. He testified that while the result is unpredictable, the only chance that Ms. Huisman’s hip had for any reasonable, not even competitive, long-term good function is with the realignment such as she had. He further testified that with the surgery, her hip would have lasted more than 10 to 20 years and she would have been able to participate in some degree of sports activity. When asked if she could get back to competitive tennis he said that he did not know but her chances were “pretty good” although the result was to some degree unpredictable.
[32] Dr. Millis did not believe there were any alternative surgical procedures to be suggested in this case. He said that the Ganz pelvic osteotomy was far and away the procedure of choice.
THE REASONS FOR JUDGMENT OF THE TRIAL JUDGE
[33] After a careful and detailed review of the evidence, the trial judge concluded that it was reasonable for Dr. MacDonald to recommend the Ganz pelvic osteotomy. She also concluded that Dr. MacDonald was not negligent in his conduct of the surgery. She was satisfied that Dr. MacDonald was not negligent in the post-operative care or the conduct of the second surgery. No appeal is taken in respect of the aforementioned issues.
[34] In respect of the issue of informed consent, the trial judge found that Ms. Huisman was not properly informed of the consequences of a nerve injury suffered during a Ganz pelvic osteotomy. The trial judge also concluded “as a matter of law that a reasonable person in Ms. Huisman’s position would not have consented to the surgery if the material information had been disclosed.” It is from the trial judge’s conclusions on informed consent that this appeal is taken.
[35] The trial judge dealt first with the issues of whether Dr. MacDonald should have told Ms. Huisman that he had only performed eight to ten Ganz pelvic osteotomies and whether one of the cuts he was to make was not under direct vision. She concluded at paragraphs 197 and 198 of her reasons for judgment as follows:
[197] Although the evidence is clear that Dr. MacDonald did not inform Ms. Huisman that he had only performed 8 to 10 osteotomies prior to her surgery and he did not advise her that one of the cuts was not made under direct vision, I am satisfied that these omissions are not a breach of the duty of disclosure. It is significant that Ms. Huisman did not ask him about the extent of his experience and only asked if he had experience.
[198] The medical evidence does not establish that either of these circumstances are material risks and I agree with counsel for the defence that in Hopp v. Lepp, [1980] 2 S.C.R. 192, at least inferentially the Supreme Court of Canada concluded that a physician failing to inform a patient of the extent of his or her experience is not in and of itself a breach of a duty of disclosure.
[36] The trial judge then turned her mind to whether the risk of nerve damage and its consequences and, in particular, whether the risk of permanent paralysis to the sciatic nerve and resulting foot drop were material risks. She concluded at paragraphs 208 and 209 of her reasons for judgment as follows:
[208] Clearly, the risk of sciatic nerve injury is a material risk of the surgery Dr. MacDonald recommended to Ms. Huisman. Dr. Garbuz and Dr. MacDonald both agreed that the sciatic nerve was at risk in this operation and that one of the consequences of injury to the sciatic nerve could be permanent paralysis. Dr. MacDonald acknowledged that foot drop is a major complication of the surgery. He agreed with the suggestion that if he did not tell Ms. Huisman about permanent foot drop then it was a failure of omission and he should have told her about that because it is a material risk and something that she had to know in order to make an informed consent to the operation.
[209] I am satisfied that the risk of permanent sciatic nerve damage is a material, special or unusual risk that a reasonable person in Ms. Huisman’s position would want to be informed of in relation to this surgery. The expert medical evidence was clear that sciatic nerve damage was a material, special or unusual risk. The authoritative literature referred to by the medical experts relating to the Ganz osteotomy supports that conclusion. Further, the fact that the occurrence of sciatic nerve damage may result in serious consequences renders it a material risk.
[37] Having concluded that the occurrence of permanent sciatic nerve damage may result in serious consequences which renders it a material risk, the trial judge addressed the question of whether this information was provided to Ms. Huisman. In particular, she addressed the conflict in the evidence between Dr. MacDonald on the one hand and Ms. Huisman and her mother on the other hand.
[38] The trial judge found Dr. MacDonald’s evidence to be forthright and honest. At paragraph 221 of her reasons, she made the following comments concerning his testimony:
[221] Dr. MacDonald’s testimony was forthright and in my view he was an honest witness. He made no effort to disparage the recollection of Ms. Huisman and her mother nor did he make any effort to elevate the extent of his recollection of his discussions with Ms. Huisman. He readily acknow-ledged that he did not have an independent recollection of their discussions and relied on his usual practice and what he recorded in his consultation note.
[39] The trial judge also found Ms. Huisman to be a forthright witness whose evidence was consistent. The trial judge observed that Ms. Huisman “made no effort to minimize the extent to which she was informed about the surgery.” She also found that the evidence of Ms. Huisman’s mother was consistent with that of her daughter.
[40] The trial judge made the point that although Dr. MacDonald’s consultation note referred to a discussion with Ms. Huisman of the risk of neurovascular injury, such note is not inconsistent with the evidence of Ms. Huisman and her mother.
[41] The trial judge preferred the evidence of Ms. Huisman and her mother in respect of whether Dr. MacDonald had told them about the risk and consequences of nerve injury, at para. 225 of the reasons:
[225] I find both Ms. Huisman and her mother to be credible witnesses with a reliable memory of these events and I accept their evidence that Dr. MacDonald did not inform Ms. Huisman of the risk of a drop foot. Ms. Huisman and her mother readily acknowledged that Ms. Huisman was infor-med that there was a risk of nerve damage, however, I am satisfied that they were not sufficiently informed by Dr. MacDonald to understand what the risk was. By her own evidence, she clearly acknowledged there were risks to the nerves involved and she assumed the risks to be low by virtue of Dr. MacDonald’s responses to her questions. Ms. Huisman was not given an explanation of the consequences of a nerve injury. She did not understand that a nerve injury could result in permanent injury.
[42] In the result, the trial judge found that Dr. MacDonald breached his duty of disclosure to Ms. Huisman “because he did not inform Ms. Huisman of a material, special or unusual risk that a reasonable person in her position would want to know.”
[43] The trial judge then turned to the issue of causation. In accordance with the Supreme Court of Canada decisions in Reibl v. Hughes, [1980] 2 S.C.R. 880 and Arndt v. Smith, [1997] 2 S.C.R. 539, she considered the so-called modified objective test – whether a reasonable person in Ms. Huisman’s position would have declined the recommended surgery if the material information had been disclosed. If the answer is yes, then causation (and therefore liability) is established. If the answer is no, then liability is not established.
[44] After considering the evidence of Ms. Huisman to the effect that she would have declined the surgery, the trial judge reviewed the evidence both for and against proceeding with the surgery, which included an analysis of the risks and benefits of doing nothing as compared to the risks and benefits of the Ganz pelvic osteotomy. Her conclusion on the issue of informed consent is contained in the following three paragraphs of her reasons:
[275] To again use the words of Cory J. in Arndt v. Smith in determining whether a reasonable person in Ms. Huisman’s position would consent to this surgery, I must take into consideration any “particular concerns” of Ms. Huisman that are reasonably based and any “special considerations” affecting Ms. Huisman. I must consider what the reasonable patient in the circumstances of Ms. Huisman would have done if faced with the same situation. As Cory J. queried in Arndt v. Smith with reference to Laskin C.J.’s reasons in Reibl v. Hughes:
Which aspects of the patient’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 consider-ation. 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 expecta-tions. 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 mod-ified objective test.
[276] Ms. Huisman was young and had always been very active in sports. Her athletics were very important to her. Her hip was deteriorating and her symptoms were increasing and impacting on her ability to pursue athletics and other daily activities. She was experiencing pain. She was anxious to obtain a resolution of her difficulties.
[277] In this case, Ms. Huisman’s questions about nerve injury are clearly relevant and indicate that she had a special concern about nerve damage, which is not unreasonable. These concerns are related to a risk of the surgery, which is low, but which has serious consequences that are significant to a reasonable person in Ms. Huisman’s circumstances – that is a young, active individual who would obviously be concerned with the risk of injury that would impact on her basic mobility. Without this surgery, she did face the certainty of a hip replacement in the future at an age when numerous hip revisions would be necessary with increasing and significant risk of sciatic nerve injury. With this surgery she would postpone the need for a hip replacement. This was elective surgery. There is no question that her symptoms from her deteriorating hip were affecting her, but she was not yet disabled. I am satisfied that a reasonable person in Ms. Huisman’s circumstances would have refused treatment had the risks of permanent nerve damage and its consequences been disclosed to her.
THE APPEAL
[45] Counsel for Dr. MacDonald raises the following grounds of appeal:
(i) the trial judge erred in her application of the modified objective test in respect of informed consent;
(ii) the reasons for judgment of the trial judge are deficient;
(iii) the trial judge erred in refusing to permit cross-examination of Ms. Huisman on certain hypothetical situations arising from her examination-in-chief; and
(iv) the trial judge erred in her underlying conclusion that Dr. MacDonald failed to describe the risk of permanent nerve damage resulting in foot drop.
ANALYSIS
(i) Did the trial judge err in her application of the modified objective test?
[46] Counsel for Dr. MacDonald submits that the trial judge erred in the application of the modified objective test articulated by the Supreme Court of Canada in Reibl v. Hughes and Arndt v. Smith. In particular, counsel argues that the trial judge erred in seizing on one question that Ms. Huisman asked of Dr. MacDonald concerning nerve damage, i.e. whether he ever had any patients who had suffered nerve damage after a Ganz pelvic osteotomy. Counsel for Dr. MacDonald submits that this one question is the fulcrum upon which the trial judge’s analysis turns. Counsel’s complaint is that she uses it to “trump” all of the other evidence at trial which suggests that a reasonable person, in the position of Ms. Huisman, would have proceeded with the surgery. This conclusion, counsel says, flies directly in the face of Ms. Huisman’s unequivocal statement that to do nothing was not an option.
[47] Counsel further submits that if one reads the trial judge’s three concluding paragraphs on informed consent, that until one gets to the last sentence of the third paragraph (para. 277), one is left with the clear impression that the trial judge is about to conclude that a reasonable person in Ms. Huisman’s position would have proceeded with the surgery. Counsel observes that there is simply no explanation or analysis of why she reaches her conclusion in the face of such strong evidence pointing in the other direction.
[48] It would appear that the trial judge reached her conclusion on the basis of the passage she cites at para. 275 of her reasons, from Cory J. in Arndt v. Smith at para. 9. In that passage, Cory J. observes that in the application of the modified objective test, a particular patient’s concerns are often revealed by the questions a patient asks of his or her physician. The trial judge concluded that Ms. Huisman’s question about nerve injury indicates a special concern about nerve damage.
[49] Counsel for Dr. MacDonald argues that the trial judge’s conclusion, without more, is unreasonable. He points out that in Arndt v. Smith, the plaintiff asked her physician a very general question concerning the risks associated with maternal chicken pox during pregnancy. In that case, Cory J. observed at para. 18 that “[i]n the absence of a specific and clearly expressed concern, there was nothing to indicate to the doctor that she had a particular concern in this regard.” Cory J. further observed that “[i]t follows that there was nothing disclosed by Mrs. Arndt’s question which could be used by the trier of fact as an indication of a particular fear regarding the possibility of giving birth to a disabled child which should be attributed to the hypothetical reasonable person in the patient’s situation.” Counsel for Dr. MacDonald submits that the trial judge in this case should have ascribed to Ms. Huisman’s question concerning the risk of nerve injury “precisely the same significance as in Arndt v. Smith.”
[50] In my view, counsel for Dr. MacDonald makes a serious case on behalf of his client. On the basis of this record, I may well have been persuaded to find in his client’s favour if I had been the trial judge. However, it is trite to say that this is not sufficient. This raises the question of the appropriate standard of appellate review.
[51] In considering what is the appropriate standard of appellate review, I must first consider whether the question in issue is a question of fact, a question of law or a question of mixed fact and law.
[52] I note that in the conclusion of her reasons for judgment, the trial judge stated: “I have also found as a matter of law that a reasonable person in Ms. Huisman’s position would not have consented to the surgery if the material information had been disclosed.” [Emphasis added.] With respect, I disagree with the trial judge’s characterization of the issue as a matter of law. The question decided by the trial judge which is in issue on this appeal involves the application of the modified objective test to the facts as found by the trial judge, which is a question of mixed fact and law: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 27.
[53] In this case, the trial judge correctly articulated the legal test to be applied. If there was error, it was in her factual analysis which resulted in her conclusion that a reasonable person in Ms. Huisman’s circumstances would have refused treatment had the risks of permanent nerve damage been disclosed to her. In order to reverse the trial judge on that conclusion, the appellant must, in my view, establish palpable and overriding error. I find support for this conclusion in the reasons for judgment of Iacobucci and Major JJ. in Housen at para. 28:
However, where the error does not amount to an error of law, a higher standard is mandated. Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review: [Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748] at paras. 41 and 45. While easy to state, this distinction can be difficult in practice because matters of mixed law and fact fall along a spectrum of particularity.
In Housen, the court was considering the standard of review in respect of a finding of negligence. Iacobucci and Major JJ. said the following at para. 29:
When the question of mixed fact and law at issue is a finding of negligence, this Court has held that a finding of negligence by the trial judge should be deferred to by appellate courts. In Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2, at p. 4, Dickson J. (as he then was) set aside the holding of the British Columbia Court of Appeal that the trial judge had erred in his findings of negligence on the basis that “it is wrong for an appellate court to set aside a trial judgment where there is not palpable and overriding error, and the only point at issue is the interpretation of the evidence as a whole” (see also Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78, at p. 84).
In this case, we are concerned with the trial judge’s interpretation of the evidence as a whole as it relates to the modified objective test.
[54] If one reads the three paragraphs of the trial judge’s conclusion on informed consent in isolation, it is not difficult to support the position advanced by counsel for Dr. MacDonald. In those paragraphs, there is no reference to Ms. Huisman’s stated position that to do nothing was not an option. There is no explanation as to why she concludes that the single question asked by Ms. Huisman concerning nerve damage “trumps” all of the other evidence – particularly the evidence concerning the certainty of a future hip replacement and subsequent hip revisions with their attendant and increasing risk of nerve damage. There is no explanation why a young 19 year old woman in the position of Ms. Huisman, with her heart set on a competitive tennis career, would decline to proceed with corrective surgery which had a relatively low risk of nerve damage and a reasonably good chance of returning her to the tennis court and an active sporting life.
[55] However, to focus only on the three concluding paragraphs of lengthy and detailed reasons for judgment is, in my view, too narrow a focus. In fairness, one must consider the entirety of the reasons. Those reasons exhibit a comprehensive appreciation of the relevant evidence and appropriate references are made to the relevant legal authorities. She correctly articulated the modified objective test. Four pages before her concluding paragraphs, the trial judge does refer to the evidence that for Ms. Huisman to do nothing was not an option. Throughout her reasons, she refers to the evidence which supports the position of Dr. MacDonald to the effect that a reasonable person properly informed, in the position of Ms. Huisman, would have proceeded with the surgery. However, except for her limited analysis in the concluding three paragraphs on informed consent such evidence is not expressly analyzed in reference to the modified objective test.
[56] It would have been preferable if the trial judge had articulated more clearly the line of reasoning that led to her conclusion. However, is the trial judge’s conclusion so deficient that one can be satisfied that the reasons exhibit palpable and overriding error? I think not. The palpable and overriding error standard of review is an extremely high standard for any appellant to establish. Iacobucci and Major JJ. in Housen, at para. 5, observed that the New Oxford Dictionary of English (1998) described the meaning of palpable as “clear to the mind or plain to see”: see also H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 69. A palpable error to be overriding must discredit the result: see H.L. at para. 69.
[57] When one reads the reasons for judgment in this case as a whole, I am not satisfied that the error articulated by counsel for Dr. MacDonald discredits the result. Counsel for Ms. Huisman points out, for example, that although to do nothing was not an option, his client came to that conclusion without the knowledge of the risk of permanent nerve damage and the consequence of foot drop. The trial judge was most certainly aware of that fact and I accept that it must have entered into the reasoning that led to her conclusion.
(ii) Are the reasons for judgment of the trial judge deficient?
[58] Counsel for Dr. MacDonald supplements his first ground of appeal by relying upon the judgment of Binnie J. in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. He submits that the trial judge failed to “articulate the thinking process which led to her conclusion” and thereby prevented meaningful appellate review which constitutes error of law: see Sheppard at paras. 28, 51 and 63.
[59] In paras. 23 and 26 of Sheppard, Binnie J. said:
[23] On a more specific level, within the confines of a particular case, it is widely recognized that having to give reasons itself concentrates the judicial mind on the difficulties that are presented (R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. N. (P.L.F.) (1999), 138 C.C.C. (3d) 49 (Man. C.A.), at pp. 53-56 and 61-63; R. v. Hache (1999), 25 C.R. (5th) 127 (N.S.C.A.), at pp. 135-39; R. v. Graves (2000), 189 N.S.R. (2d) 281, 2000 NSCA 150, at paras. 19-23; R. v. Gostick (1999), 137 C.C.C. (3d) 53 (Ont. C.A.), at pp. 67-68). The absence of reasons, however, does not necessarily indicate an absence of such concentration. We are speaking here of the articulation of the reasons rather than of the reasoning process itself. The challenge for appellate courts is to ensure that the latter has occurred despite the absence, or inadequacy, of the former.
[26] The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.
[60] For the reasons already expressed above, I am not able to say that the trial judge in this case, given her detailed review of the evidence and the relevant law, did not engage in the appropriate reasoning process that led to her conclusion.
(iii) Did the trial judge err in refusing to permit cross-examination of Ms. Huisman on certain hypothetical situations arising from her examination-in-chief?
[61] During examination-in-chief, Ms. Huisman testified to what she would or would not have done had she been fully informed of the risks associated with the Ganz pelvic osteotomy. She testified that she would have opted for different surgery producing the same result at less risk, which had been suggested by Dr. Wedge. Counsel for Dr. MacDonald sought to establish through cross-examination that she would have proceeded with the Ganz pelvic osteotomy if Dr. MacDonald had explained to her that there were no other generally accepted procedures that would produce the same result with less risk. The trial judge refused to permit this line of cross-examination:
THE COURT: …I realize where your question might be focused to, Mr. Downing, because ultimately it is, the question for me will be what would a reasonable person do, and I am actually very concerned about putting a hypothetical proposition to a witness, who is not an expert witness. You know, she is here to tell us what she observed, what she did, what she understood, and in my view, this type of a hypothetical question is not a proper question to her, and indeed is not a hypothetical that you may be able to have the evidence bear out at the end of the day as well.
So that is my second difficulty with the question. So my ruling is that is not a proper question to put to the plaintiff.
[62] Counsel for Dr. MacDonald also sought to cross-examine Ms. Huisman on her evidence that if she had known one of the three cuts made in her pelvis was a blind cut, it would have affected her decision to proceed with the surgery. Counsel put to Ms. Huisman the assumption that Dr. MacDonald used an x-ray machine to check the location of the cut. The trial judge refused to permit this assumption to be put to the witness:
I am uncomfortable with this line of questioning because this type of suggestion to her imports a lot of understanding to the type of surgical procedure and options that you are putting to her, and that is why we are quite comfortable [sic] with a lay witness, because we do not know the basis of that person’s understanding, and that is what makes the question unfair. And that is my concern with it. …
I think a hypothetical where you are putting some almost technical assumptions to her and some difficulties, [sic] because I think it is an unfair question to ask her what she would have done four years ago when she was 19, 18. Okay? That is my real concern.
[63] In my view, the trial judge erred in limiting the cross-examination as she did. In Arndt v. Smith at p. 549, Cory J. said:
[N]egligence actions against members of the medical profession based on a failure to warn will inevitably be hypothetical, because they are based on constructing what would have happened if the patient had been fully informed of the risks of the procedure.
Ms. Huisman, having testified in examination-in-chief in respect to hypothetical situations, with the benefit of hindsight, was certainly open to full cross-examination on these issues. The fact that the hypothetical questions may have involved technical assumptions or medical information does not make the questions unfair in these circumstances. Counsel for Dr. MacDonald was simply attempting to elicit from the witness what she would have done had she been provided with certain additional information concerning the available alternatives and the procedure involved in the blind cut. This line of questioning goes to what a reasonable patient in the circumstances of Ms. Huisman would have done. It was a legitimate line of inquiry.
[64] While I regard the rulings limiting cross-examination to be in error, I would not reverse the trial judge on this ground. Counsel for Dr. MacDonald submits that the line of questioning could have led to an admission by Ms. Huisman that she would have proceeded with the Ganz pelvic osteotomy in the face of the risk of permanent nerve damage. Such an admission, he submits, would result in the dismissal of the action: see Arndt v. Smith at para. 13.
[65] One can only speculate what the cross-examination may have produced. Having read and re-read the evidence of Ms. Huisman, I think it is highly unlikely that a skilled cross-examiner would have obtained such an admission. In any event, I do not believe that the answers to these questions, although relevant, were likely to have added appreciably to the evidence available for the trial judge to engage in the analysis required for the modified objective test. Indeed it is clear that the trial judge did not regard either the availability of other procedures, as testified to by Dr. Wedge, or the fact that one of these cuts was a blind cut as germane to her analysis. In the result, I am not satisfied that the limitation on cross-examination resulted in any substantial wrong or miscarriage of justice and thus there is no basis to order a new trial: see the Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 134(6).
(iv) Did the trial judge err in her underlying conclusion that Dr. MacDonald failed to disclose the risk of permanent nerve damage resulting in foot drop?
[66] Counsel for Dr. MacDonald submits that if Dr. MacDonald’s consultation note to the effect that he discussed the risk of neurovascular injury with Ms. Huisman and her mother is an honest note then Ms. Huisman and her mother must have forgotten significant components of the risk discussion. Counsel further submits that in the face of the trial judge’s finding that Dr. MacDonald was a forthright and honest witness, the trial judge’s conclusion concerning Dr. MacDonald’s failure to disclose the risk of permanent nerve injury and the consequence of foot drop constitutes palpable and overriding error.
[67] I disagree with this submission. I agree with the trial judge that Dr. MacDonald’s note is not inconsistent with the evidence of Ms. Huisman and her mother. There is no inconsistency in the finding that Dr. MacDonald was a forthright and honest witness and the trial judge’s preference for the evidence of Ms. Huisman and her mother on the risk discussion. Dr. MacDonald admitted that he did not have an independent recollection of the details of the risk discussion and relied on his usual practice. Ms. Huisman and her mother had every reason to remember the risk discussion in detail given what was at stake for Ms. Huisman. I see no basis for interfering with the trial judge’s finding of fact on this issue. I see no error and certainly no palpable and overriding error.
CONCLUSION
[68] For the above reasons, I would dismiss the appeal.
COSTS
[69] I would award costs to the respondents on a partial indemnity scale. At the conclusion of the oral argument, counsel filed bills of costs for the appeal. No submissions were made at that time. Counsel for Dr. MacDonald requested that he have the opportunity to make written submissions in respect of the bill of costs of counsel for the respondents in the event that the appeal was dismissed. In accordance with s. 12(6) of our Practice Direction, I would order that counsel for the respondents deliver written submissions (double spaced and limited to five pages) in support of his bill of costs within seven days of the release of these reasons. I would also order that counsel for Dr. MacDonald deliver a response in writing (double spaced and limited to five pages) within fourteen days of the release of these reasons. Finally, I would order that counsel for the respondents may deliver a brief reply in writing (double spaced and limited to three pages) within seventeen days of the release of these reasons. If counsel are able to agree on costs, they obviously need not make any submissions in writing.
RELEASED:
“MAY 25 2007” “Robert P. Armstrong J.A.”
“RRM” “I agree R. McMurtry C.J.O.”
“I agree E.E. Gillese J.A.”