MacKinnon v. Sharkey, 2009 ONCA 265

CITATION: MacKinnon v. Sharkey, 2009 ONCA 265

DATE: 20090327

DOCKET: C47506

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and Rouleau JJ.A.

BETWEEN

Cheryl MacKinnon, Edward Ridgeway, Michelle Ridgeway and Nicole Carey

Plaintiffs (Respondents)

and

Grand River Hospital, Dr. Paul Sharkey, Nurse D. Bannerman, Nurse K.A. Neill and Nurse Jane Doe

Defendants (Appellant)

Counsel:

Darryl A. Cruz and Erica J. Baron for the appellant

J. Greg Murdoch and Cynthia Cartelle for the respondents

Heard: February 2, 2009

On appeal from the judgment of Justice C.A. Tucker of the Superior Court of Justice dated June 25, 2007.

Rosenberg J.A.:

[1] Dr. Paul Sharkey appeals from the judgment of Tucker J. finding him negligent in the care and treatment of his patient Cheryl MacKinnon. The appellant submits that the trial judge erred in finding that MacKinnon did not provide her informed consent to surgery, erred in finding that the appellant breached the standard of care of the surgery, and erred in finding that any breach of the standard of care caused the damages MacKinnon suffered. The appellant further submits that the trial judge erred in her application of the law and made palpable and overriding errors of fact.

[2] In my view, the trial judge properly applied the law with respect to informed consent and made no palpable and overriding factual errors in this respect. In the result, it becomes unnecessary to consider the various other issues raised by the appellant concerning the standard of care as it related to the surgery itself and causation. For the following reasons, I would dismiss the appeal.

THE FACTS

Introduction

[3] The respondent Cheryl MacKinnon is a single mother of three children. In 1989, she began to develop pain in the fingers of her left hand. The pain gradually spread to the hand, arm and shoulder. She was able to work all day long and it was only at night that the symptoms would develop, sometimes preventing her from sleeping. She spoke to several physicians in an attempt to identify the cause of the symptoms and she was provided with a number of non-invasive treatments with drugs and physiotherapy. These treatments provided little, if any, relief. The initial diagnosis had been Carpal Tunnel Syndrome. However, by July 2000, a specialist to whom the appellant had been referred thought the symptoms were a result of Thoracic Outlet Syndrome.

[4] Thoracic Outlet Syndrome is a description of a variety of symptoms caused by compression of the vessels and nerves between the clavicle and the first rib. Thoracic Outlet Syndrome surgery is designed to relieve the pressure by removing the first rib. This is major surgery. The surgeon is working in a confined space in the vicinity of both a major artery, the subclavian artery from the aorta to the left arm, and an important nerve, the brachial plexus.

[5] In late 2001, MacKinnon’s family physician referred her to the appellant for a surgical consultation. The appellant is a general surgeon in Kitchener with privileges at Grand River Hospital. The appellant saw MacKinnon on January 31 and March 19, 2002. The surgery was performed on March 22, 2002. In the course of the surgery the subclavian artery and vein and the brachial plexus were injured. It became necessary to transfer the respondent by helicopter to a tertiary care hospital. When she arrived at the hospital the respondent was “in extremis”; there was heavy bleeding into the chest cavity and the physicians had difficulty obtaining a blood pressure reading. The consequences of the injuries to the artery, vein and especially the brachial plexus, were disastrous, leaving MacKinnon with permanent disabilities and chronic pain. In view of my conclusion concerning informed consent it is unnecessary to detail the course of the operation and post-operative care.

The March 19 consultation

[6] The March 19 visit lies at the heart of the trial judge’s finding that the respondent’s consent to the surgery was not informed. The appellant and MacKinnon gave conflicting versions of what was discussed at the March 19 consult. While the trial judge accepted the respondent’s version of the events, since the appellant submits that she made palpable and overriding errors in doing so, I will summarize the testimony of both parties.

[7] The appellant testified that he advised MacKinnon of the risk of damage to the subclavian artery and vein, damage to the brachial plexus nerve and of pneumonia. He testified that he “would have” shown her pictures of the vessels and nerves and of the incision as well as an artist’s rendition of the removal of the first rib. He said that he would have told her “that they are in a very tight space, that they [the blood vessels] are held out of the way or retracted during the procedure, that they are guarded and protected or at least when I do them they are guarded and protected”. He testified that he does not “get real specific” but tells the patient:

If you put a hole into somebody’s subclavian or axillary artery, there is a significant amount of bleeding. The good news is it’s usually right there, right in front of your visual field and it’s a matter of putting a stitch or two in it to repair it. The brachial plexus is a different matter. These are the nerves to the hand and arm. As a result you can lose function of certain muscle groups, have a dysfunctional hand basically.

[8] The appellant testified that he had that sort of discussion with the respondent on March 19. He testified that he would have told the respondent she would be in hospital between four and eight days, depending on pain management.

[9] The appellant also made notes of the discussion. His handwritten notes of March 19 are as follows:

Risks, A/V/N damage, pneumonia etc

Expectation of length of stay etc

[10] He also dictated a note on March 20 as follows:

Using textbooks and diagrams, I have gone over the surgery and what it entails, a detailed discussion about the risks including trauma to the subclavian artery, vein or brachial plexus, and what the sequelae of that trauma could entail. Postop. expectations etc. were all discussed with her. It is really her feeling that the symptomatology has got so bad that she really does not have anything left to choose but to proceed with surgical resection of her first rib.

[11] Counsel for the respondent read in a portion of the appellant’s examination for discovery in which the appellant said that he told MacKinnon she would be in hospital for a couple of days and off work for six to eight weeks. In his examination for discovery he recalled saying something along the lines that “you don’t want me to do anything to the arteries this would result in bleeding a lot”. However, he denied saying, “it’s not like I will be getting drunk that night [before the surgery]”. At trial, he merely testified that he could not remember making a comment about getting drunk. During the examination for discovery, the appellant did not recall whether the respondent had asked any questions concerning permanent damage. At trial, he testified that she did ask questions about arteries, veins, nerves and the likelihood of trauma. At the examination for discovery, he testified that he did not specifically talk to the respondent about repairing the artery. As indicated above, at trial he testified that he did discuss repairing the artery.

[12] MacKinnon testified that she had only a brief, 15 minute discussion with the appellant on March 19. The appellant did not discuss the possibility of nerve damage from the operation or damage to the veins and artery or the possibility of heart failure. He said the surgery would take 30 to 45 minutes and she would be in and out of hospital in 3 to 4 hours. This was consistent with the hospital booking sheet, which indicated the length of stay as “a.m.”. The appellant told her that she would be fine. She gave this account of the conversation about the risks from the surgery:

He started telling me what was going to happen. He turned around in his chair. He grabbed a book. He put it down in front of us. He turned to a page and he said that … he showed me your vein that my nerves were tucked in and that kind of thing and then he … he said didn’t want me to touch the … to touch these and I said why, what happens. And he said you’d bleed a lot. And I said, oh. And he said, it’s not like I’m going to be out drinking the night before, eh, Cheryl. [Emphasis added.]

[13] Because of the remark about not drinking the night before, the appellant seemed to be making light of the risks. MacKinnon denied that there was any detailed discussion of the risks including trauma to the artery, vein or nerve and what the result of the trauma could be. All the appellant said was that she could bleed a lot.

[14] MacKinnon agreed that she felt that she had no other option than surgery to deal with the pain. However, she also testified that had she known the risk of heart failure or the consequences of a cut to an artery she would not have undergone the surgery. She explained that she was the single mother of three children and would never have taken the risk.

THE TRIAL JUDGE’S REASONS ON INFORMED CONSENT

[15] The trial judge stated that the test for informed consent is “whether on the balance of probabilities a reasonable person in the position of the plaintiff would have consented to the surgery if appropriate and proper disclosure of the risks were provided to her”. The trial judge also referred to the test for causation, holding that if a reasonable person, properly informed of the risks, would have consented to the surgery, causation was not made out. The trial judge then excerpted a portion of the reasons of the court in Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539 at para. 15, concerning the appropriate test to be applied.

[16] The trial judge accepted the respondent’s version of the March 19 meeting. The important part of the trial judge’s findings of fact are as follows:

Firstly, I accept Cheryl MacKinnon's description of the 15-minute discussion of the operation with Dr. Sharkey. Dr. Sharkey had no independent recollection of the conversation nor did he have specific notes. His description of the risks appears to the court to be a "rote" one. His description at trial of what he would have said to Cheryl MacKinnon was based on what he called his usual practices. He would have had hundreds, if not thousands, of such conversations over the years and would not likely have had any specific recollection of his talk with Cheryl McKinnon.

For many reasons, Ms. MacKinnon was in a much better position to recall the conversation and to report Dr. Sharkey's attitude towards the surgery. Unlike Dr. Sharkey, this would have been the only such conversation she had probably ever had in her life and, given the serious consequences that occurred to her, her recollection on what had been told to her would be acute. In other words, she had reasons to recall what she had been told in the light of what happened to her. I recognize that Cheryl MacKinnon's memory as to dates and times and some specific details were not the best due to her heavy narcotics use. However, she was very specific about the conversation she had with Dr. Sharkey. Accordingly, I accept her testimony in that regard.

[17] Specifically as to the disclosure made by the appellant, the trial judge found as follows:

According to Cheryl's recollection, there was no discussion of nerve damage, vein damage, or other consequences at all in any detail. Even if a general discussion was held as described by Dr. Sharkey covering some areas of concern, I would not find it adequate unless the grave circumstances were clearly outlined and the very extreme possible outcomes were made clear to her. The impression left with Cheryl MacKinnon after Dr. Sharkey's description of the surgery was, given his attitude which she felt was, for want of a better word, flip, and thus her belief was that the surgery would not have serious risks. In addition, her belief that it was a day surgery all leads me to find that inadequate disclosure was made.

[18] As to causation, the trial judge found that the respondent was not desperate for a solution and that surgery was her only choice. She accepted MacKinnon’s evidence that the difficulty with her arm was not interfering with her social or work life. She accepted the evidence of MacKinnon’s family physician that the respondent was referred to the appellant for the purposes of obtaining an opinion as to the surgical options available to treat her problem. The trial judge found that the surgery was “optional and elective” and concluded on causation as follows:

In the circumstances of Cheryl MacKinnon's life at the time, with two children to support, I find she would not as a reasonable person have consented to what was elective surgery had she known the consequences by being properly informed about it.

ANALYSIS

[19] I did not understand the appellant to suggest that the trial judge applied the wrong legal test. She referred to Arndt v. Smith, which in turn refers to the leading authority of Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880. Subject to what I say below, I also did not understand there to be any dispute about the appropriate standard of disclosure. In his own testimony, the appellant accepted that the standard of care was to tell patients the potential risks of the operation. Thus, he accepted that he would have to tell the respondent that the surgery takes place in a “very tight space”, that there are “big vessels” in the area that have to be protected or guarded. He would also have to tell the patient about the risk of bleeding and that while the artery is “usually right there” and easily repaired, the brachial plexus “is a different matter”. Since the brachial plexus supplies nerves to the hand and arm there was a risk of losing function of the hand.

[20] The experts called by the appellant and the respondent agreed that had the appellant provided the information as summarized in his note of March 20 he would have met the applicable standard of care. One of the appellant’s experts suggested that the appellant exceeded the standard of care by showing her diagrams. This same expert also agreed that it was important to tell patients about potential consequences because the surgery carries serious risks and there should be a detailed discussion.

[21] Thus, the principal issues of disclosure and informed consent in this appeal are purely factual questions. The standard of review is a strict one. As this court said in Hill v. Allen, 2009 ONCA 70 at para. 36, a trial judge’s findings as to the acts or omissions that constitute negligence attract considerable deference: “absent palpable and overriding error, there is no room for appellate interference with those findings.”

[22] Dealing first with the trial judge’s findings on disclosure of risks, the appellant identifies the palpable and overriding error as the trial judge’s failure to take into account the appellant’s contemporaneous notes made on March 19 and 20. The appellant submits that the trial judge provided no rationale for why those notes should be disbelieved or discounted. Further, the trial judge failed to take into account the appellant’s testimony of his usual practice, which was circumstantial evidence that the discussion actually took place.

[23] In my view, the trial judge did not make any palpable and overriding error. There is no onus on a trial judge to refer to every piece of evidence adduced by the parties. The trial judge must have been aware that the appellant had made notes of the conversation, since in her review of the appellant’s evidence earlier in her reasons she pointed out that certain matters were not documented in those notes. For example, the appellant’s notes of the first visit do not document the tests he says he performed, while the notes of the second visit do not document the expected length of stay in the hospital. The trial judge accurately and fully recounted the appellant’s testimony as to his version of the March 19 conversation.

[24] The trial judge was not bound to accept the appellant’s version of events simply because he had made notes. The trial judge explained why she accepted MacKinnon’s evidence. There was a basis for doing so. As she pointed out, the appellant had little memory of the actual conversation and was relying essentially on what he would have said. By contrast, MacKinnon had quite a vivid memory of the conversation, especially the comment about not being out drinking the night before the surgery. Significantly, at trial the appellant did not deny making the comment, he simply testified that he did not remember saying it. The appellant was also inconsistent as between his examination for discovery and his trial evidence as to whether he discussed the consequences associated with the risks of the surgery.

[25] The appellant also submits that the trial judge erred in her findings with respect to causation. Again as pointed out in Hill at para. 37, the standard for appellate intervention is an exacting one and the appellant must establish palpable and overriding error. The appellant submits that the trial judge erred in finding that the patient was not desperate for a solution and that surgery was her only choice. The appellant submits that the trial judge failed to take into account evidence of complaints that MacKinnon made as recorded in notes of other specialists she saw before seeing the appellant. However, MacKinnon disagreed with the contents of those notes and it was open to the trial judge to accept her evidence.

[26] The appellant submits that the trial judge failed to consider MacKinnon’s testimony that she felt she had no other option but to proceed with the surgery given her situation. However, this is a narrow reading of her testimony. She made that statement in the context of being unaware of the risks of the surgery. It was open to the trial judge to infer that had she been properly informed of the risks and the consequences, she would not have elected to have the surgery. As she said, “I consented to the surgery on the grounds of what he … of how he told me.” The evidence of the respondent, accepted by the trial judge, was that the appellant made light of the risks and did not tell her of the potential consequences.

[27] The appellant submits that the trial judge erred in concluding that if the disclosure described by the appellant had been made it was still inadequate. This submission is based on the following passage of the reasons:

Although all three medical experts opined that if Dr. Sharkey had the conversation as he said he did, it would meet the standard of adequate disclosure, these opinions are based on the assumption such disclosure was made and that it was done in such a way that it was understood by the patient and in a way that she could properly make and assess the material risks to make a determination on that basis as to whether to have the surgery or not.

[28] I do not read this passage as imposing a higher standard of care than was testified to by the appellant and the experts. Rather, the trial judge found that the appellant did not in fact make the disclosure that he said he did and which he agreed needed to be made to meet the standard of care.

[29] The appellant submits that MacKinnon’s evidence that she would not have proceeded with the surgery had she been properly informed of the risks is “inherently unreliable as she was no doubt influenced by the hindsight knowledge of the adverse outcome”. However, the trial judge was well aware that the test to be applied is a modified objective one that protects against the dangers of a purely subjective test. As the Court said in Arndt v. Smith at para. 16:

A purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made.

[30] The trial judge found that the respondent “would not as a reasonable person” have consented to the surgery had she been properly informed of the consequences. The trial judge having heard all the evidence was in the best position to infer whether a reasonable person in the respondent’s position would have consented to the surgery. I see no basis for interfering with that conclusion.

DISPOSITION

[31] Accordingly, I would dismiss the appeal with costs fixed at $40,000 inclusive of G.S.T. and disbursements.

RELEASED: March 27, 2009 “PSR”

“Marc Rosenberg J.A.”

“I agree J. C. MacPherson J.A.”

“I agree Paul S. Rouleau J.A.”