Revell v. Chow, 2010 ONCA 353

CITATION: Revell v. Chow, 2010 ONCA 353

DATE: 20100514

DOCKET: C48911

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Gillese JJ.A.

BETWEEN

Wendy Revell

Plaintiff (Respondent)

and

Barbara Heartwell and Isabel Chow

Defendants (Appellant)

J. Thomas Curry and Dena N. Varah, for the appellant

Claudio Martini, for the respondent

Heard: January 11, 2010

On appeal from the judgment of Justice Mary J. Nolan of the Superior Court of Justice dated April 30, 2008.

Gillese J.A.:

OVERVIEW

[1] On December 14, 2000, Wendy Revell had both of her breasts removed because of cancer. Dr. Isabel Chow, a plastic surgeon, performed a breast reconstruction procedure during the same operation. Complications arose following surgery and Ms. Revell developed a large open wound in her abdomen that persisted until it was repaired some two years later.

[2] Ms. Revell sued Dr. Chow for negligence.[^1]

[3] At trial, Dr. Chow was found to have met the standard of care in recommending and performing the breast reconstructive surgery. As well, she was found to have met the standard of care owed in respect of Ms. Revell’s post-operative care. However, the trial judge found that Dr. Chow failed to adequately explain to Ms. Revell the material risks attendant on the breast reconstruction surgery, including the risks associated with delayed wound healing. In light of this finding, the trial judge concluded that Dr. Chow failed to obtain Ms. Revell’s informed consent before undertaking the surgery. She further found that the reasonable person in Ms. Revell’s circumstances would not have undertaken the procedure had the risks been adequately disclosed.

[4] By judgment dated April 30, 2008, (the “Judgment”), Ms. Revell was awarded damages of approximately $154,000.

[5] Dr. Chow appeals.

[6] For the reasons that follow, I would dismiss the appeal.

BACKGROUND

[7] Ms. Revell discovered a painful lump in her right breast in October of 2000. She made an appointment with her family doctor of 20 years, Dr. Wayne Albus. Dr. Albus sent her for a mammogram. The results of the mammogram were negative. Ms. Revell asked her family doctor to refer her to Dr. Heartwell, a general surgeon.

[8] Ms. Revell saw Dr. Heartwell on November 8, 2000. At that time, Ms. Revell was 45 years old. She was 5’8” tall, weighed 210 pounds, and had smoked 10 to 20 cigarettes per day for 25 years. She also had a sternotomy scar in her abdominal area that was approximately 34 centimetres in length.

[9] Dr. Heartwell took a history and ordered a needle biopsy. The results were negative. Dr. Heartwell then arranged a full biopsy, the results of which were positive.

[10] On November 27, 2000, Dr. Heartwell told Ms. Revell that she had stage two infiltrative lobular cancer of the right breast. In consultation with Dr. Heartwell, Ms. Revell decided to have a modified radical mastectomy of the right breast and a simple mastectomy of the left breast.

[11] Dr. Heartwell and Ms. Revell discussed various options for reconstructive breast surgery. Ms. Revell was interested in finding out more about breast reconstruction. Dr. Heartwell referred Ms. Revell to Dr. Chow to discuss reconstructive options.

[12] Ms. Revell’s first appointment with Dr. Chow took place on December 1, 2000. Her husband attended the appointment with her.[^2] The appointment lasted for approximately one hour. During it, Dr. Chow and Ms. Revell discussed breast reconstruction options. Dr. Chow told Ms. Revell that breast implants were not a good option for her.

[13] From Dr. Chow, Ms. Revell learned that a bilateral pedicle TRAM flap procedure involved the reconstruction of breasts from tissue taken from her abdominal area. Because Ms. Revell’s sternotomy scar could affect the blood flow to the flaps, Dr. Chow recommended that Ms. Revell have a Doppler ultrasound test. This test would determine the adequacy of the arteries and blood vessels in the abdominal area to provide blood supply to the tissue that would be brought up to form the reconstructed breasts.

[14] Dr. Chow gave Ms. Revell a pamphlet on the TRAM flap procedure, as well as the names of other patients who had had the procedure. Subject to the results of the Doppler test, Ms. Revell understood Dr. Chow to have told her that the TRAM flap procedure was a good option for her. They discussed her smoking.

[15] There is a dispute as to whether Dr. Chow discussed with Ms. Revell the option of doing nothing in respect of breast reconstruction. Ms. Revell testified that Dr. Chow did not discuss this option with her. Dr. Chow testified that it was her usual practice to discuss that option with her patients.

[16] Ms. Revell testified that Dr. Chow told her at the first appointment that if she had the TRAM flap procedure, she would have scars on both breasts and in the abdomen from hip to hip, there was a slight risk of infection, she could possibly develop a hematoma, her breasts might not be symmetrical and there was the potential, but unlikely, possibility that she could lose her navel. Ms. Revell also testified that she could not remember whether Dr. Chow informed her of the risk of tissue loss.

[17] According to Ms. Revell, Dr. Chow did not mention wound healing to her.

[18] On December 7, 2000, Ms. Revel had another appointment with Dr. Chow. Dr. Chow told her that the Doppler test showed that there was sufficient blood flow to proceed with the TRAM flap procedure. Ms. Revell then signed a consent form for the TRAM flap procedure to be performed at the same time as the mastectomies on December 14, 2000.

[19] After her meeting with Ms. Revell on December 7, Dr. Chow dictated a lengthy consultation note dated December 10, 2000, which indicated that she informed Ms. Revell of, among other things, the risk of delayed wound healing. Dr. Chow testified that in a case of a patient like Ms. Revell, who was a smoker, obese and had abdominal scarring, her practice was to tell the patient she was at a higher risk for surgical complications, including delayed wound healing.

[20] Dr. Chow said that on the pamphlet that she gave to Ms. Revell, she had indicated the potential area of concern for wound healing and had drawn a diagram of a triangle with the apex at the umbilicus down to the abdominal incision. Because that is the widest gap, it is the area of most concern for problems with delayed wound healing. Ms. Revell agreed she received the pamphlet but could not recall what it said.

[21] The mastectomies and breast reconstruction surgery were performed as scheduled. Ms. Revell experienced delayed wound healing of her abdominal incision as well as of the incision in her left breast. The wound in the left breast healed. The significant abdominal wound did not. Dressing for the wound had to be changed daily due to drainage.

[22] There is some question as to the extent to which delayed wound healing caused a delay in Ms. Revell’s chemotherapy treatments. While the parties disagree on the length of the delay, it is common ground that some delay in chemotherapy occurred as a result of delayed wound healing.

[23] Dr. Chow followed Ms. Revell’s care until December 2001.

[24] In January of 2002, Ms. Revell continued to have the open abdominal wound. It measured 8 centimetres by 8 centimetres and the mesh that had been used to close the incision was still exposed. Ms. Revell was referred to a surgeon in London, Ontario.

[25] In January 2003, the wound was closed by reconstructive surgery. Following that operation, the wound finally healed and this action was started. The parties agreed on damages should Dr. Chow be found negligent. Thus, the only issue at trial was liability.

[26] Both parties testified at trial. In addition, Dr. Leonard Harris testified as an expert for Ms. Revell. Ms. Revell also called Dr. Albus and Ms. Joanne St. Pierre to give evidence. Dr. Albus, it will be recalled, was Ms. Revell’s long time family doctor. Ms. St. Pierre is a registered nurse who had helped Ms. Revell by going to her home to dress her wound.

[27] Dr. James Mahoney gave expert testimony on behalf of Dr. Chow. Dr. Heartwell also testified on her behalf.

THE TRIAL JUDGMENT

[28] After giving an overview of the case and stating the issues, the trial judge thoroughly reviewed the qualifications of the two experts. She then carefully set out the facts and the relevant legal principles in respect of the standard of care, causation and informed consent.

[29] The trial judge found that Ms. Revell did not understand the risks of the breast reconstruction procedure. The trial judge accepted that Ms. Revell did not understand: the seriousness of the risks related to the TRAM flap procedure; the likelihood of the risks occurring; the effects of delayed wound healing; the impact that delayed wound healing would have on her ability to begin chemotherapy immediately after the operation; that she was not an ideal candidate for the TRAM flap operation because she was obese, a smoker and had had previous abdominal surgery; and, that she was at high risk for complications from the procedure.

[30] The trial judge noted that the breast reconstruction procedure was elective surgery whereas the mastectomies were not. The mastectomies were necessary to save Ms. Revell’s life.

[31] The trial judge held that Dr. Chow failed to provide Ms. Revell with information of the material risks of the TRAM flap procedure in a manner that would allow Ms. Revell to understand and accept those risks. As a result, the trial judge found that Ms. Revell had not given informed consent to the procedure.

[32] The trial judge then considered whether the reasonable person in Ms. Revell’s position would have declined treatment had adequate disclosure been made.

[33] She found that Ms. Revell’s main concern was dealing with the cancer and that there was nothing about Ms. Revell’s circumstances or lifestyle that indicated that having immediate breast reconstruction was any kind of priority for her at that time. The trial judge observed that Ms. Revell did not present as a person who was focussed on her appearance or whose self-esteem was dependant on the immediate replacement of her breasts.

[34] The trial judge accepted Dr. Harris’ evidence that Ms. Revell was at high risk for delayed wound healing and that she should have been so advised by Dr. Chow.

[35] The trial judge accepted Ms. Revell’s evidence that had she been told and understood the risks of the procedure that were posed because of her weight, smoking and sternotomy scar, she would not have had the operation.

[36] The trial judge concluded that the reasonable person in Ms. Revell’s circumstances would not have proceeded with the immediate TRAM flap procedure had she been adequately informed of the attendant risks and complications.

[37] The trial judge went on to consider whether Dr. Chow breached the standard of care by recommending that Ms. Revell have the immediate TRAM flap procedure, in her performance of that procedure or in the manner in which she provided post-operative care to Ms. Revell. She concluded that Dr. Chow had met the standard of care in all three respects. No appeal is taken from the trial judge’s determinations on these matters.

THE ISSUES

[38] The appellant raises three grounds of appeal. She submits that the trial judge erred in:

1. her application of the law governing informed consent;
2. finding that Dr. Chow made inadequate risk disclosure regarding possible delay in chemotherapy; and
3. her application of the reasonable person test.

INFORMED CONSENT

The alleged errors of the trial judge

[39] The appellant says that the trial judge erred in two ways in applying the law of informed consent. First, the appellant says that the trial judge’s determination that Ms. Revell had not given informed consent for the TRAM flap procedure is based on her finding that Ms. Revell did not understand the nature of the risk of delayed wound healing. But, the appellant says, Ms. Revell never took the position that she did not understand the risks involved in the procedure. Rather, Ms. Revell’s position throughout was that Dr. Chow never told her that she was at risk for delayed wound healing. The appellant submits that the trial judge rejected Ms. Revell’s evidence that the risk of delayed wound healing was not disclosed and, as a consequence, it was not open to the trial judge to find that Ms. Revell was told of the risk but did not understand it.

[40] Second, the appellant submits that even if there were a basis on which to make the factual finding that Ms. Revell did not understand the risks associated with delayed wound healing, the test for informed consent is not based on the patient’s subjective understanding and it was an error to decide it on that basis. The appellant says that in the circumstances of this case, it was sufficient that Dr. Chow disclosed the risks associated with the procedure. A physician has no legal obligation to ensure that the patient understands the information he or she has been given, except in specific and narrow circumstances. The appellant submits that those circumstances include where the patient does not speak the language, is resistant to discussing risks, has limited education or is in physical and emotional distress – that is, situations in which it should be evident to the physician that the patient may not understand the risk discussion. The appellant says that there was nothing in Ms. Revell’s presentation or circumstances that required Dr. Chow to do more to ensure that Ms. Revell understood the information that she had been given.

The governing legal principles

[41] As the legal principles governing informed consent are well settled, they can be stated shortly.

[42] Doctors must disclose all material risks to patients before proceeding with treatment. A material risk is one that a reasonable person in the patient’s position would want to know about before deciding whether to proceed with the proposed treatment. Risks that are rare will be material if the consequences of those risks are serious. See Van Dyke v. Grey Bruce Regional Health Centre (2005), 2005 CanLII 18841 (ON CA), 255 D.L.R. (4th) 397 (Ont. C.A.) at para. 63, leave to appeal to S.C.C. refused, [2005] 3 S.C.R. viii.

[43] In Matuzich v. Lieberman, [2002] O.J. No. 2811 (S.C.) at para. 53, Ferrier J. provides a helpful guide to approaching the question of whether there has been adequate disclosure of the material risks attendant on a procedure or treatment. He said that disclosure involves three major elements:

1. an explanation of the procedure and the injury that may occur;
2. an explanation of the frequency or likelihood of the injury (risk) materializing; and,
3. an explanation of the consequences of the injury (risk), should it occur.

Analysis

[44] The trial judge set out the legal principles that govern the law of informed consent, by reference to the seminal cases on point including Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880, Hopp v. Lepp, 1980 CanLII 14 (SCC), [1980] 2 S.C.R. 192, Videto v. Kennedy (1981), 1981 CanLII 1948 (ON CA), 33 O.R. (2d) 497 (C.A.) and Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539. She then applied the properly articulated principles to the facts as she found them.

[45] The salient findings of the trial judge are these:

1. Ms. Revell did not understand the seriousness of the risks related to the TRAM flap procedure and did not understand the likelihood of the risk of delayed wound healing;
2. Ms. Revell did not understand that she was not an ideal candidate for this operation;
3. Ms. Revell was at high risk for delayed wound healing and should have been so advised by Dr. Chow; and,
4. Ms. Revell’s primary concern was to deal with the cancer.

[46] The trial judge appears to have accepted Dr. Chow’s testimony that she told Ms. Revell that she was at higher risk of surgical complications, including delayed wound healing. However, the simple fact that a risk discussion took place is not sufficient to determine whether adequate disclosure was made nor does it preclude the trial judge from finding that inadequate disclosure had been made. As we have seen, the adequacy of disclosure is dependent upon the gravity of the risk, the likelihood of the risk occurring, and the particular circumstances of the patient. Thus, the risk discussion must be examined to determine whether the communication was sufficient to meet the disclosure obligation.

[47] Using the guide that Ferrier J. provided in Matuzich v. Lieberman, the trial judge’s finding that Dr. Chow told Ms. Revell she was at a higher risk of surgical complications amounts to a finding that Dr. Chow satisfied the first element of disclosure – she explained the TRAM flap procedure and identified the material injuries (risks) to which the procedure gave rise, including the risk of delayed wound healing. However, the other findings of the trial judge, set out above, demonstrate that Dr. Chow failed to satisfy the second and third elements in that she failed to adequately explain the likelihood that Ms. Revell would suffer delayed wound healing and she failed to explain the possible consequences of delayed wound healing, should that risk occur.

[48] In the present case, it was incumbent on Dr. Chow to explain to Ms. Revell that because she was a smoker, obese and had an abdominal scar, it was more likely that she would suffer from the risk of delayed wound healing. Further, Dr. Chow had to explain to Ms. Revell the consequences of delayed wound healing, one of which was a possible delay in receiving the chemotherapy she needed because of the cancer. By her own admission, Dr. Chow told Ms. Revell only that she was at a higher risk to suffer from surgical complications – she did not go on and explain the likelihood that Ms. Revell might suffer those risks nor the consequences of delayed wound healing, if that were to occur.

[49] Read in context, it is apparent that when the trial judge said that Ms. Revell did not “understand” the risks, she was not referring to Ms. Revell’s subjective understanding. That is, the trial judge did not find that Dr. Chow made adequate disclosure and Ms. Revell simply did not understand what she had been told. Rather, the trial judge meant that the content of Dr. Chow’s explanation to Ms. Revell about the material risks was inadequate because she did not inform Ms. Revell of the likelihood that she would suffer the injuries(risks) associated with the procedure nor did she tell Ms. Revell what the consequences might be, should she suffer from delayed wound healing. In saying that Ms. Revell did not “understand” the risks, the trial judge meant that because the requisite information had not been given, Ms. Revell did not appreciate the likelihood that the material risks would materialise nor did she appreciate the consequences of the injuries, should they occur. It was the failure to make adequate disclosure of the material risks involved in the TRAM flap procedure that grounded the trial judge’s finding that Ms. Revell had not given informed consent.

[50] Accordingly, I would dismiss this ground of appeal.

RISK DISCLOSURE REGARDING CHEMOTHERAPY

[51] The appellant’s argument on this ground of appeal centers on the potential that chemotherapy might be delayed as a result of complications from the TRAM flap procedure. Specifically, the appellant submits that the trial judge committed a palpable error if she found that the potential for delayed chemotherapy was a material risk that had not been disclosed.

[52] In my view, the trial judge did not make such an error as she did not make that finding. As explained above, the trial judge found that Dr. Chow failed to adequately disclose the likelihood of delayed wound healing for Ms. Revell – an overweight smoker with a sternotomy scar – and that she failed to adequately explain the possible consequences if Ms. Revell were to experience delayed wound healing. One of the possible consequences of delayed wound healing is that it can result in a delay in receiving chemotherapy. It was within that context (i.e. as a possible consequence of delayed wound healing) that the trial judge discussed delayed chemotherapy. She did not find that there had been a failure to disclose, as a separate material risk, the risk of delayed chemotherapy.

[53] Accordingly, I would dismiss this ground of appeal.

CAUSATION

[54] Once the trial judge found that Dr. Chow failed to adequately disclose the risks attendant on the TRAM flap procedure, she was obliged to determine whether Ms. Revell would have gone ahead with the procedure had she been properly informed. In other words, the trial judge was required to determine whether Dr. Chow’s negligent failure to disclose was the cause of Ms. Revell’s harm.

[55] The trial judge recognized that to decide this question, she needed to apply the modified objective test. This test was enunciated in Reibl v. Hughes and reaffirmed by the Supreme Court of Canada in Arndt v. Smith at para. 6, as follows:

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. [Emphasis in the original.]

[56] In other words, the modified objective test required the trial judge to determine whether the reasonable person in Ms. Revell’s circumstances, if adequately informed of the attendant risks, would have proceeded with the TRAM flap procedure.

[57] The appellant submits that the trial judge erred in her application of the modified objective test in two ways. First, she submits that the trial judge considered what a reasonable person would have done had she known of the actual complication that Ms. Revell developed, rather than of the risk of developing that complication. Put another way, the appellant contends that the trial judge erred by approaching the question of what a reasonable person would do through the lens of hindsight, (i.e. with knowledge of the actual extent of the complication) rather than by considering whether the reasonable person would have refused treatment had she been given adequate information.

[58] The appellant points to para. 85 of the trial judge’s reasons as evidence of her hindsight approach to the issue. Para. 85 reads as follows:

While Dr. Heartwell testified that women who have immediate breast reconstruction deal with the cancer and related issues with a more positive and optimistic outlook, it is difficult to think that if Ms. Revell knew that problems with wound healing would mean that the abdominal wound would remain open, creating a hole that was at least 8 cm by 8 cm, that the flesh would decay and that it would smell of decay, would require daily treatment without improvement until a further operation was required to repair it two years later, Ms. Revell would not have had the immediate TRAM flap and neither would any reasonable patient in her position.

[59] The second error, the appellant submits, is that by focussing on the actual complication that Ms. Revell suffered, the trial judge failed to adequately consider the benefits of the procedure. The appellant argues that there is medical support for having the reconstructive surgery done quickly. For example, patients may have less anxiety about their cancer when they have immediate reconstruction. The medical literature supports that there are psychological benefits to patients having immediate reconstruction. These benefits, it is contended, must be considered in the context of the trial judge’s finding that Dr. Chow met the standard of care in recommending the procedure. Where a treatment or procedure is medically reasonable, the causation hurdle is difficult to overcome because a reasonable person would not usually decline the treatment.

[60] I accept that it is an error to apply the modified objective test from the perspective of hindsight. As the Supreme Court of Canada said in Arndt v. Smith, in the quotation set out above, the court must consider what the reasonable person, in the plaintiff’s situation, “would have done … if given all the information about the possible risks”. The question is not what the patient would have done had she known the full extent of her eventual injury.

[61] While it is unfortunate that in deciding this issue, the trial judge adverted to the actual complications that Ms. Revell suffered, her reasons for decision must be read as a whole. When that is done, I see no reason to interfere with the trial judge’s conclusion that the reasonable patient in Ms. Revell’s circumstances would have elected to not have the TRAM flap procedure performed immediately after the mastectomies.

[62] The trial judge identified the governing legal principles. It is apparent from her discussion of those principles and repeated references to Reibl v. Hughes that she was aware that the modified objective test protects against the dangers of a purely subjective approach. The trial judge also made the findings required by the modified objective test. She considered Ms. Revell’s circumstances, taking into account the special considerations that affected Ms. Revell. She found that:

1. at the time Ms. Revell was contemplating breast reconstructive surgery, her main concern was dealing with the cancer;
2. there was nothing about Ms. Revell’s circumstances or lifestyle that indicated that breast reconstruction was any kind of a priority. Ms. Revell did not present as a person who was overwhelmed by or especially concerned about the loss of her breasts. She was not a person focused on her appearance nor was her self-esteem dependent on the immediate replacement of her breasts;
3. there were three factors that indicated that Ms. Revell was at high risk if she undertook the procedure: her weight, smoking and sternotomy scar;
4. based on Dr. Harris’ evidence, which the trial judge accepted, Ms. Revell was at high risk for delayed wound healing complications and should have been so advised;
5. there were serious possible consequences should the material risk of delayed wound healing come to pass; and
6. the TRAM flap procedure was not medically necessary. Had Ms. Revell chosen not to have the elective procedure, there would have been no additional risk to her or her health.

[63] The trial judge, having heard all the evidence, was in the best position to decide whether a reasonable person in Ms. Revell’s position would have consented to the procedure, had she been adequately advised of the risks associated with it. I see no reason to disturb the trial judge’s determination that the reasonable person in Ms. Revell’s circumstances would not have proceeded with the TRAM flap procedure had adequate disclosure been made of the risks involved in the procedure. The fact that there are positive aspects to having the reconstructive surgery done promptly does not derogate from this conclusion.

[64] Accordingly, I would not allow the appeal on this ground.

DISPOSITION

[65] I would dismiss the appeal with costs to the respondent fixed at $25,000, inclusive of disbursements and GST.

RELEASED: May 14 2010 (“J.L.”)

“E. E. Gillese J.A.”

“I agree J. I. Laskin J.A.”

“I agree K. Feldman J.A.”

[^1]: She initially claimed against Dr. Barbara Heartwell, as well, but that claim was dismissed, on consent, prior to trial. [^2]: Sadly, her husband died under tragic circumstances in 2003 and, thus, was unable to testify at trial.