CITATION: Hill v. Allen, 2009 ONCA 70
DATE: 20090127
DOCKET: C47582
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Cronk and Gillese JJ.A.
BETWEEN
Elleanor Hill, Brian Douglas Hill, Jonathan Allan Hill, Matthew Cleveland Hill and Brianna Elizabeth Hill, Minors by their Litigation Guardian, Elleanor Anne Hill
Plaintiffs (Appellants)
and
Victoria Hospital Corporation, Dr. H. H. Allen, and Dr. R. Gratton
Defendants (Respondent)
Susan M. Chapman and Barbara Legate, for the appellants
David I.W. Hamer and A. Matas, for the respondent
Heard: December 5, 2008
On appeal from the judgment of Justice W.A. Jenkins of the Superior Court of Justice dated July 16, 2007 and reported at 2007 ONSC 27582.
By the Court:
I. Overview
[1] The appellants, Elleanor Hill and several of her family members, sued the respondent, Dr. H. H. Allen, for damages allegedly arising from surgery performed by Dr. Allen on Mrs. Hill to correct a gynecological condition.
[2] Following a 40-day trial, the trial judge found that the surgery performed was medically necessary and that Dr. Allen had not conducted the surgery in a negligent manner.
[3] The trial judge further found that Dr. Allen was negligent in his care of Mrs. Hill because he failed to obtain her informed consent to the surgery. However, he also concluded that a reasonable person in Mrs. Hill’s circumstances would have decided to have the surgery in question, even if she had been properly advised of the nature of the surgery and the risks and alternatives. He therefore held that the appellants had failed to establish that Dr. Allen’s negligence caused Mrs. Hill’s injuries and, by judgment dated July 16, 2007, dismissed the appellants’ action against Dr. Allen.[^1]
[4] The appellants appeal the trial judge’s liability decision. They argue that the trial judge erred by failing to consider what Mrs. Hill would have done if Dr. Allen had provided her with the benefit of his clinical assessment of the risks and benefits of the surgery and his recommendation whether to undergo the surgery. They submit that, properly advised, Mrs. Hill would have declined the surgery and elected to continue with the form of non-surgical management of her medical condition employed prior to surgery.
[5] For the reasons that follow, the appeal is dismissed. On this record, it was open to the trial judge to find that Mrs. Hill would have undertaken the corrective surgery in question even if she had been properly advised by Dr. Allen regarding the surgery, its attendant risks and the available non-surgical alternative. Accordingly, it cannot be said that any breach by Dr. Allen of a duty to fully and properly advise Mrs. Hill was causative of her injuries, so as to warrant a liability finding against Dr. Allen.
II. Background
(1) Mrs. Hill’s Medical Condition and the Surgery
[6] Mrs. Hill had a lengthy medical history. Prior to the impugned surgery, she had undergone 11 surgical procedures for numerous purposes, including three caesarean sections, three laparoscopies, removal of an ovarian cyst, removal of a cyst from her bowel, removal of her right ovary, and removal of her gall bladder. In addition, in 1981, when she was 29 years of age, Mrs. Hill had a hysterectomy as a result of uterine “prolapse” or displacement that caused abdominal pain. Mrs. Hill also suffered from irritable bowel syndrome and epileptic seizures.
[7] In 1992, when Mrs. Hill was 40 years of age, she began to experience significant abdominal pain caused by “vaginal vault prolapse”. Simply put, Mrs. Hill had a weak pelvic floor that allowed intra-abdominal pressures to push major organs (e.g. her uterus and vagina) downwards into a prolapsed or displaced position. Although Mrs. Hill’s vaginal vault prolapse was regarded by her healthcare professionals as minor in nature, it nonetheless produced considerable discomfort and pain. As is common with pelvic floor weakness, Mrs. Hill’s vaginal vault prolapse was also associated with urinary incon-tinence.
[8] The evidence at trial indicated that several surgical procedures had been utilized over the years to correct the type of gynecological problem experienced by Mrs. Hill, with varying degrees of success. In particular, in the case of vaginal vault prolapse, a number of procedures involving the use of surgical mesh to repair the prolapse had been attempted. Each of these procedures was designed to alleviate the pain caused by the prolapsed vagina by suspending the vagina with surgical mesh to restore it to a more normal anatomical position.
[9] In June 1993, when Mrs. Hill underwent her surgery, a two-part surgical approach was often employed to address vaginal prolapse: vaginal vault suspension surgery was performed in tandem with a bladder suspension procedure. The latter surgical intervention was intended to avoid causing or exacerbating urinary incontinence.
[10] Vaginal prolapse can also be treated by non-surgical means through the use of a “pessary” – a device that is inserted into the vagina to elevate the vaginal vault, thereby relieving the displacement of the vagina.
[11] There was evidence at trial that patients with Mrs. Hill’s condition could use a pessary on a long-term basis. However, there was also evidence that pessaries are inconvenient and sometimes cause vaginal infections or pain on intercourse. Several experts testified that, as a result, few young, active women choose pessary use as a long-term option to cope with vaginal vault prolapse. Moreover, it appears to be undisputed that in 1993, no pessaries existed that could address both vaginal vault prolapse and urinary incontinence.
[12] Mrs. Hill initially used a pessary to manage her condition and to alleviate her abdominal pain. However, she continued to experience urinary incontinence.
[13] On June 24, 1993, Dr. Allen performed surgery of his own design on Mrs. Hill to correct her vaginal vault prolapse and to suspend her bladder in an effort to alleviate her incontinence. Dr. Allen’s procedure involved the placement of a large piece of surgical mesh under the bladder and suspension of the vaginal vault from the underside of the mesh. It is this two-part surgical intervention that underlies the dispute in this case.
[14] Unfortunately, Mrs. Hill experienced severe post-operative pain and inflammation in her lower back and pubic area. She was unable to lift her legs and developed an infection and weakness in both legs. She was diagnosed as having osteitis pubis (inflammation of the pelvic bones), which ultimately required corrective surgery to remove the mesh inserted by Dr. Allen. She also developed bladder dysfunction and chronic pelvic and coccygeal pain,[^2] and experienced seizures more frequently. Since 1997, Mrs. Hill’s seizures have been controlled through the use of medication. However, she has permanent bladder dysfunction and continues to suffer from incontinence, weakness in her legs, pain in her lower back, and coccygeal and pelvic pain.
(2) Appellants’ Complaint
[15] In their factum, the appellants characterized the sole issue on appeal as one of causation, describing it in these terms: “what Mrs. Hill would have done if she had been properly informed” by Dr. Allen. In respect of this issue, they argued:
This is not, however, a typical informed consent case. In the usual case, the plaintiff faces a high hurdle on causation, because the doctor recommended a medically reasonable option and the plaintiff must establish that she would not have followed the doctor’s advice. In this case, Dr. Allen failed to make any recommendation at all. The trial judge ignored that negligence and ignored the evidence that Allen’s recommendation would have been to avoid the surgery. Faced with that advice, any reasonable patient in Mrs. Hill’s position would have chosen not to have the surgery. [Emphasis in original.]
[16] Later in their factum, the appellants submitted:
Not only did Dr. Allen fail to recommend against surgery, he also failed to disclose the risks of surgery to Mrs. Hill. He failed to tell her that the pessary was an option.
In the face of Dr. Allen’s failure to disclose the necessary information and provide her with the recommendation as to what he believed was appropriate, the finding on causation cannot stand. No reasonable patient would have opted for surgery in those circumstances, and Mrs. Hill herself would not have done so.
[17] During oral argument, the appellants maintained that the trial judge erred by failing “to consider and make findings concerning Dr. Allen’s failure to provide [Mrs. Hill] with the benefit of his clinical assessment and judgment regarding the risks and benefits of the surgery”. This error, the appellants argued, fatally tainted the trial judge’s causation analysis as Dr. Allen’s clinical assessment and recommendation concerning the surgery, if provided, would have led Mrs. Hill “away from surgery”. The appellants claimed that if Dr. Allen had fully and properly advised Mrs. Hill, he would have recommended against the surgery and Mrs. Hill would have followed his advice.
[18] In our view, the appellants’ submissions engage both standard of care and causation issues. However, nothing turns on whether the issues raised are considered under a standard of care or causation rubric, or some combination thereof. In the end, for the reasons that follow, the appellants’ challenge to the trial judge’s liability decision cannot succeed under either approach.
(3) Trial Judge’s Decision
[19] The trial judge addressed the standard of care applicable in this case as enunciated in terNeuzen v. Korn, 1995 SCC 72, [1995] 3 S.C.R. 674, and the duty owed by Dr. Allen to adequately advise Mrs. Hill concerning the proposed surgery. With respect to the duty to disclose, the trial judge indicated that a physician is required to advise a patient as to “the nature of the [proposed] treatment, the expected benefits of the treatment, the material risks of the treatment, the material side effects of the treatment, alternate courses of action and the likely consequences of not having the treatment”. This was an accurate description of Dr. Allen’s duty to advise Mrs. Hill.
[20] The trial judge also expressly considered whether Dr. Allen had adequately discharged this duty in relation to Mrs. Hill. After reviewing the evidence bearing on the question of the information disclosed by Dr. Allen to Mrs. Hill prior to her surgery, and the positions of the parties concerning that evidence, the trial judge found that Dr. Allen failed to explain to Mrs. Hill:
(i) the nature of the surgery that he proposed to perform, including:
(a) the fact that the type of surgery proposed was a novel procedure developed by Dr. Allen himself; and
(b) the specifics of the procedure proposed and its possible effects, including the size of the mesh to be used to suspend Mrs. Hill’s vagina and the fact that the mesh could cause adhesions and distortion of Mrs. Hill’s bladder;
(ii) that the continued use of a pessary was a possible long-term alternative to surgery; and
(iii) that surgery was not required “if [Mrs. Hill] was prepared to put up with the urinary incontinence she was experiencing and if she was prepared to continue with the pessary on a long-term basis”.
[21] In light of these omissions, the trial judge held that Dr. Allen was negligent in failing to obtain Mrs. Hill’s informed consent to the surgery. However, based on expert evidence that he accepted, the trial judge also held: that the surgery performed by Dr. Allen was “a medically acceptable solution to Mrs. Hill’s complaints”; that based on Mrs. Hill’s circumstances and complaints – including her age and level of activity, the surgery was necessary; and that no negligence in the actual conduct of the surgery could be attributed to Dr. Allen. None of these holdings is challenged by the appellants.
[22] The trial judge described the relevant causation inquiry in this fashion: “[W]hat a reasonable patient in Mrs. Hill’s position would have done if Dr. Allen had adequately explained the surgery to her and told her that long-term use of a pessary was an alternative to surgery.”
[23] There is no suggestion that the trial judge misapprehended the legal test that governed his causation analysis. He referred to the applicable authorities on this issue, including Arndt v. Smith, 1997 SCC 360, [1997] 2 S.C.R. 539, Van Dyke v. Grey Bruce Regional Health Centre (2005), 2005 ONCA 18841, 255 D.L.R. (4th) 397 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 335, and Aristorenas v. Comcare Health Services and Dr. Jeffrey Gilmour, 2006 ONCA 33850, [2006] O.J. No. 4039 (C.A.). In particular, he referred to the ‘modified objective test’ described in Arndt at paras. 6 and 9, as quoted in Van Dyke at paras. 83 and 84 and first enunciated in Reibl v. Hughes, 1980 SCC 23, [1980] 2 S.C.R. 880:
The test enunciated [in Reibl] 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.
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 the plaintiff’s age, income, marital status, and other factors, should be taken into consideration. However, Laskin C.J. didn’t 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 expec-tations and concerns will usually be revealed by the questions posed. [Emphasis in original.]
[24] In accordance with this test, the trial judge reviewed the objective and subjective factors that he regarded as having influenced Mrs. Hill’s decision to undertake the surgery. In so doing, he made the following critical findings of fact:
(i) based on her previous experience with surgeries and a discussion with Dr. Allen during an office visit on June 4, 1993, Mrs. Hill knew that the procedure at issue was major surgery;
(ii) as Mrs. Hill had great confidence in Dr. Allen, the fact that the surgery was a procedure designed by Dr. Allen and involved the insertion of a large piece of mesh beneath her bladder, “would not have bothered [Mrs. Hill]”.
On the contrary, Mrs. Hill would have accepted Dr. Allen’s explanation that the failure rate with his procedure was better than that experienced with the alternative form of surgery often employed to correct vaginal vault prolapse; and
(iii) Mrs. Hill was “fed up” with the problems caused by the pessary, including the incontinence and other problems associated with its use, and was “surgery ready”.
[25] The trial judge also considered, and rejected, Mrs. Hill’s claim that she would not have had the surgery if she had been fully advised by Dr. Allen. He stated:
I am also satisfied that a reasonable patient in Mrs. Hill’s circumstances would have decided to have the Marlex mesh [to correct her vaginal vault prolapse] and MMK [to correct her incontinence] procedures if she had been properly informed of the nature of the surgery involved, and the risks and the alternatives. I therefore find that the plaintiffs have failed to prove that Dr. Allen’s negligence in failing to obtain Mrs. Hill’s informed consent caused her injuries.
The only mistake Dr. Allen made was to book Mrs. Hill for surgery without obtaining her informed consent. Dr. Allen’s negligence in failing to obtain Mrs. Hill’s informed consent did not, however, cause her injuries.
III. Analysis
[26] The focus of the appellants’ argument before this court is twofold. They submit that the trial judge erred by failing to consider and find that: (i) Dr. Allen failed to provide Mrs. Hill with the benefit of his clinical assessment concerning the risks and benefits of the surgery ultimately carried out; and (ii) Dr. Allen neglected to recommend whether the surgery should be undertaken in preference to the non-surgical option of the continued use of a pessary on a long-term basis. The appellants claim that, as a result of these errors, the trial judge omitted a “critical” component of the requisite causation analysis and consequently, his causation conclusion cannot stand. We will deal with these arguments in reverse order.
(1) Alleged Failure to Make a Recommendation
[27] The appellants initially maintained that the trial judge erred by failing to consider and find that Dr. Allen’s negligence included his failure to make any recommendation for or against the surgery and non-surgical alternatives. Ultimately, however, the appellants’ counsel acknowledged during oral argument that Dr. Allen had no legal obligation to make such a specific recommendation.
[28] This was a proper and responsible concession. In Zampro v. Birsson (1981), 1981 ONCA 1909, 32 O.R. (2d) 75 (C.A.), this court rejected the notion that a surgeon’s failure to make any recommendation regarding the advisability of elective surgery constituted negligence. In Zampro at pp. 84-85, Wilson J.A., Brooke J.A. concurring, stated:
[T]he election in the case of elective surgery is the patient’s election. True, it must be the election of a fully-informed patient, one who has been apprised of the benefits of the surgery and warned of all the risks. …
While it may be that a surgeon is under a duty to give his patient his assessment of how the benefits of surgery measure up against the risks of having it, it seems to me that in the case of elective surgery only the patient can truly evaluate the benefits for him or her. There is a substantial subjective element to the evaluation of those benefits which are more than merely physical. There are sociological and psycho-logical aspects, the importance of which will vary from patient to patient. Should the surgeon step outside his area of medical and surgical expertise and tell the patient what is “best” for him or her?
[W]ith great respect I do not think we should put the surgeon in the position where the only safe course for him to follow in the case of elective surgery (which he normally would assume he will perform in a non-negligent manner) is to advise against it.
See also Khoshmashrab v. Bent, 2004 ONSC 18517, at para. 24.
[29] The surgery at issue in this case was not minor. Nor was it “almost cosmetic surgery” of the type at issue in Zampro. Nevertheless, it was elective surgery in the sense that Mrs. Hill could have continued with her use of a pessary on a long-term basis, instead of undergoing surgery. On the trial judge’s findings, Dr. Allen did not specifically advise Mrs. Hill of this non-surgical alternative. In large measure, the trial judge’s finding that Dr. Allen did not obtain Mrs. Hill’s informed consent to the surgery rests on this important deficiency in Dr. Allen’s advice to his patient. However, this does not mean that Dr. Allen should also have been found negligent on the discrete ground that he failed to provide Mrs. Hill with a recommendation whether to undertake the surgery.
[30] In any event, it is not clear that Dr. Allen failed to recommend the surgery to Mrs. Hill. On the contrary, parts of the trial judge’s reasons suggest that he found that Dr. Allen did make a specific recommendation in favour of the surgery. For example, while the trial judge held that Dr. Allen did not properly inform Mrs. Hill of the nature of the relevant surgery and of “the risks and alternatives”, he also said: “Mrs. Hill had great confidence in Dr. Allen. The fact that the procedure Dr. Allen recommended was his own procedure … would not have bothered her” (emphasis added).
[31] We would not give effect to this ground of appeal.
(2) Alleged Failure to Provide Clinical
Assessment of Risks and Benefits
[32] The appellants also argue that the trial judge erred by failing to consider and find that Dr. Allen neglected to provide Mrs. Hill with the benefit of his clinical assessment of the risks and benefits of both the surgery and the available non-surgical option – the long-term use of a pessary. We disagree.
[33] As we have said, the trial judge addressed Dr. Allen’s duty to adequately advise Mrs. Hill about the surgery. Indeed, this formed a critical part of his negligence analysis. In describing the nature of this duty, the trial judge expressly adverted to the requirement to tell Mrs. Hill of the “expected benefits of the treatment, the material risks of the treatment, the material side effects of the treatment” and “alternate courses of action” (emphasis added).
[34] The trial judge went on to make specific findings concerning the nature of Dr. Allen’s negligence in relation to his duty to advise Mrs. Hill. These included findings that Dr. Allen failed to inform Mrs. Hill of alternatives to the surgery, namely, the long-term use of a pessary, and the consequences if surgery was not undertaken – for example, continued urinary incontinence. It is implicit in the trial judge’s negligence findings that he recognized that Mrs. Hill was entitled to Dr. Allen’s best judgment, based on his clinical knowledge and experience, as to the risks and benefits of the surgery and the available non-surgical options. The obligation to provide Mrs. Hill with the benefit of such an assessment drove the negligence findings made by the trial judge.
[35] The appellants’ real complaint is that the trial judge failed to make a particular negligence finding against Dr. Allen: namely, that Dr. Allen was negligent in failing to make a specific recommendation to Mrs. Hill regarding the advisability of the surgery in all the circumstances. As we understood their argument, although the appellants ultimately acknowledged that Dr. Allen had no affirmative legal obligation to recommend for or against the surgery, they maintain that his failure to make such a recommendation is nevertheless material as Dr. Allen would have advised against the surgery had he made any recommendation at all, and Mrs. Hill would have accepted his advice. On this basis, the appellants argue that the trial judge erred by holding that a reasonable person in Mrs. Hill’s circumstances would have decided to have the surgery even if she had been properly advised by Dr. Allen.
[36] We reject this argument for several reasons. First, the determination of the specifics of Dr. Allen’s negligence is a matter squarely within the trial judge’s domain. His findings concerning those of Dr. Allen’s acts or omissions that constituted negligence attract considerable deference from this court. Absent palpable and overriding error, there is no room for appellate interference with those findings.
[37] Similarly, with respect to causation, the legal error asserted by the appellants concerns the trial judge’s factual analysis resulting in his conclusion that a reasonable person in Mrs. Hill’s circumstances would have decided to have the two-part surgery performed by Dr. Allen even if she had been properly advised of the nature of the involved surgery and “the risks and the alternatives”. This involves consideration of the trial judge’s interpretation of the evidence as a whole, as it relates to the modified objective causation test. In order to reverse the trial judge’s conclusions on this issue, the appellants must establish palpable and overriding error: see for example, Huisman v. MacDonald, 2007 ONCA 391, at paras. 52-53. In our opinion, this exacting standard for appellate intervention has not been met in this case.
[38] Second, as we have indicated, the trial judge held that the surgery was “a medically acceptable solution to Mrs. Hill’s complaints” and that, given Mrs. Hill’s circumstances and complaints, the surgery carried out by Dr. Allen was necessary. The trial judge further held that the surgery performed was within the applicable reasonable standard of care. On these unchallenged findings, regardless of the deficiencies in Dr. Allen’s advice to Mrs. Hill, the surgery was both appropriate and a reasonable option to offer Mrs. Hill.
[39] The appellants contend that Dr. Allen testified that if he had provided a recommendation to Mrs. Hill, “it would have been to continue with the pessary” and “to avoid the surgery”. They point especially to Dr. Allen’s testimony on discovery that, “[I]f you can find a way not to have this person have an operation that they will accept, then that’s certainly desirable” (emphasis added) and at trial that, confronted with the problem of minor stress incontinence and effective use of a pessary, he would recommend that: “Mrs. Hill carry on [with the pessary] and that she decide when its – when her symptoms are severe enough that she wishes something done about it. That’s entirely her decision” (emphasis added.)
[40] However, to focus on only these parts of Dr. Allen’s testimony in isolation takes his evidence out of context and ignores his explicit caution that non-surgical options must be treatments that the patient “will accept”. Dr. Allen testified about the prospects of a patient like Mrs. Hill accepting the long-term use of a pessary as an alternative to surgery. He said in part:
[M]ost young people don’t want to do that [use a pessary on a long-term basis] because they, especially in a person who reacts a little bit and produces a discharge. They’re going to have to use that cream for the rest of their life to keep that, to keep that discharge down … so, I don’t think I’ve had anybody 40 years old decide to carry on indefinitely. I’ve had people carry on for a while until they got, maybe their job, they were going to retire in two years or something like that, but I don’t think I’ve ever had anybody carry on, 40 years old, carry on for the rest of their life with a, with a pessary of any kind.
[41] Moreover, the evidence accepted by the trial judge established that:
i) on March 2, 1993, Dr. Allen was effectively recom-mending that Mrs. Hill continue with the use of a pessary, subject to follow-up and re-evaluation in July 1993;
ii) Mrs. Hill consulted her family physician on March 23, 1993 about her incontinence. He advised her to speak to Dr. Allen “about a bladder repair for stress incon-tinence”;
iii) Mrs. Hill also went to a local emergency department on March 28, 1993 with complaints about vaginal infections, a rash and incontinence;
iv) contrary to Mrs. Hill’s testimony, Mrs. Hill telephoned Dr. Allen on April 1, 1993 because “she was con-cerned about urine loss, vaginal discharge and a rash” and “to ask him about surgery to correct her incontinence”. This call occurred almost four months before the re-evaluation and follow-up recommended by Dr. Allen; and
v) during their April 1, 1993 telephone call, Dr. Allen told Mrs. Hill that he could repair her incontinence and vaginal vault prolapse with the two-part surgery ultimately conducted. Dr. Allen also explained the operation to Mrs. Hill and told her that it would not relieve all her symptoms. He then told Mrs. Hill that she would have to meet with him, and an office visit was scheduled for June 4, 1993.
[42] It was against this factual backdrop, which suggests that Mrs. Hill’s incontinence had become unacceptable to her, that the trial judge found that Mrs. Hill was “fed up with her incontinence and the other problems associated with the use of the pessary”, and was ready for surgery. Contrary to the appellants’ submission, these findings were open to the trial judge on the evidence.
[43] In all these circumstances, we do not accept the appellants’ claim that Dr. Allen would have recommended against surgery for Mrs. Hill had he made a specific recommendation concerning it. On the contrary, given Mrs. Hill’s conduct and her condition at the beginning of April 1993, her continuing complaints of incontinence, and her discussion with Dr. Allen on April 1, 1993, Dr. Allen’s evidence may be read as suggesting that he would have recommended the two-part surgery as an alternative to a treatment that was no longer acceptable to Mrs. Hill (the continued use of a pessary) and to respond to her wishes to do something about her incontinence and the problems associated with the pessary.
[44] There is a third important factor to be considered. The appellants submit that if Mrs. Hill had been properly informed of the risks and benefits of the surgery and if she had the benefit of Dr. Allen’s clinical assessment and advice on the choice of corrective surgery versus the continued use of a pessary, she would have chosen the latter option.
[45] But the trial judge expressly rejected Mrs. Hill’s evidence that she would have refused the surgery if she had been fully advised by Dr. Allen. In the trial judge’s opinion, Mrs. Hill “was not … always a reliable witness”. He held that given Mrs. Hill’s inaccurate evidence on discovery, the conflicting histories of urinary problems given by her to two other physicians, and her difficulty remembering some aspects of her medical history, her testimony at trial that she would have continued with a pessary if she had been properly advised by Dr. Allen, “cannot be relied upon”. Thus, the trial judge’s credibility-based findings were adverse to Mrs. Hill. These findings attract great deference from this court.
[46] Fourth, there is ample evidential support for the trial judge’s finding that Mrs. Hill would have elected to undergo the surgery even if she had been fully and properly advised of the risks of and alternatives to the surgery.
[47] We note, as did the trial judge, that Mrs. Hill had a history of major abdominal and other surgery in the past. On the trial judge’s undisputed findings, she knew that the surgery to be carried out by Dr. Allen was a major abdominal procedure involving the insertion of mesh to suspend her vagina and bladder. In addition, the trial judge found that although Dr. Allen told Mrs. Hill that the surgery was not going to relieve all her symptoms or improve her irritable bowel syndrome, Mrs. Hill nevertheless wanted Dr. Allen to look at her bowel to determine if he could correct that condition. As the trial judge said:
It is therefore apparent that prior to Dr. Allen’s surgery, Mrs. Hill’s health was tenuous. The irritable bowel syndrome caused her abdominal pain, pelvic pressure and urgency. In order to improve her health, Mrs. Hill quit her job as a home care worker, dropped out of a case management course and consulted Dr. Allen.
[48] The record also reveals numerous complaints by Mrs. Hill to various healthcare providers about her incontinence, the need to wear incontinence pads and her continuing experience with vaginal infections and rashes. The trial judge held:
The pessary was causing an infection, a discharge, a rash and incontinence, and it would probably cause pain on inter-course. Mrs. Hill was occasionally wearing a pad for incontinence and she did not want to continue with the pessary.
Contrary to the appellants’ submission, these findings were grounded in the evidence.
[49] Mrs. Hill’s continuing ailments are most unfortunate. But whatever the short-comings in Dr. Allen’s advice to Mrs. Hill, we are unable to accept that the trial judge erred by concluding that, properly advised, Mrs. Hill would have chosen to undergo the surgery at issue. Indeed, on this record, there is compelling support for that conclusion.
IV. Disposition
[50] Accordingly, for the reasons given, the appeal is dismissed. The respondent is entitled to his costs of the appeal, if sought, fixed in the amount of $20,000, inclusive of disbursements and GST.
RELEASED:
“JAN 27 2009” “Dennis O’Connor A.C.J.O.”
“DOC” “E.A. Cronk J.A.”
“E.E. Gillese J.A.”
[^1]: The action was earlier dismissed as against the defendants Victoria Hospital Corporation and Dr. R. Gratton.
[^2]: The coccyx is a small bone at the base of the spinal column.