COURT OF APPEAL FOR ONTARIO

CITATION: Edwardson v. St. Joseph's Healthcare Hamilton (St. Joseph's Hospital), 2012 ONCA 719

DATE: 20121026

DOCKET: C53352

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Alan Edwardson, Alice Edwardson, personally and as Litigation Guardian for the minors Daniel Edwardson and Benjamin Edwardson

Plaintiffs (Respondents)

and

St. Joseph's Healthcare Hamilton – St. Joseph's Hospital and Larry Kahn

Defendants (Appellant)

Harry Underwood and Andrew McCutcheon, for the appellant

James A. Scarfone and Lauren Grimaldi, for the respondents

Heard: September 28, 2012

On appeal from the judgment of Justice David Samuel Crane of the Superior Court of Justice, dated February 1, 2011.

By the Court:

[1] The appellant, Dr. Larry Kahn, appeals the judgment of Crane J. of the Superior Court of Justice dated February 1, 2011, awarding damages of $404,810.28 plus pre-judgment interest and costs to the respondent Alan Edwardson, his wife and their two young sons.

[2] The respondent suffered a stroke following a cervical rhizotomy, a medical procedure performed by Dr. Kahn, an anaesthetist.

[3] The trial judge found that Dr. Kahn failed to obtain Mr. Edwardson’s informed consent to the procedure, and that a reasonable person in the patient’s position would not have consented to the procedure had he been properly informed of the material risks.

[4] The trial judge awarded general damages of $200,000 and damages for future economic loss of $100,000 to the respondent, and damages of $40,000 to his wife Alice, and $10,000 each to his sons Daniel and Benjamin under the Family Law Act, R.S.O. 1990, c.F.3.

[5] The appellant appeals on four grounds, two relating to liability and two relating to damages.

[6] First, the appellant contends that the trial judge erred by concluding that the respondent did not give his informed consent to the rhizotomy. The appellant concedes that the trial judge applied the appropriate legal test on the consent issue, as articulated in Hopp v. Lepp, [1980] 2 S.C.R. 192, and Reibl v. Hughes, [1980] 2 S.C.R. 880. The appellant also does not challenge the trial judge’s finding that Dr. Kahn personally failed to obtain the respondent’s informed consent to the procedure he performed. However, the appellant submits that the trial judge erred by not finding that the respondent provided his informed consent to the procedure during a consultation with a different doctor (Dr. Beauprie), in a different province (Nova Scotia), more than eight months before Dr. Kahn performed the procedure in Hamilton, after the respondent had moved from Halifax to Thunder Bay to take up a new position as an Anglican clergyman.

[7] The trial judge carefully reviewed the testimony of Dr. Beauprie, the appellant and the respondent, as well as the relevant medical documentation. He specifically believed the respondent’s testimony about his conversations with the two doctors and had serious concerns about the credibility of Dr. Kahn. He concluded that in the early Nova Scotia consultation with Dr. Beauprie, the respondent did not give an informed consent to the stage-three rhizotomy performed on him eight months later in Ontario. We can see no basis for interfering with this factual conclusion, anchored as it is in application of the correct legal test and common sense. In short, it is far removed from being a palpable and overriding error.

[8] Second, the appellant contends that the trial judge erred in his conclusion that a reasonable person in the position of the respondent would not have consented to the rhizotomy if properly informed of the potential benefits and risks of the procedure.

[9] Again, the trial judge carefully applied the correct legal test – the modified objective test – from Reibl v. Hughes. He considered the potential benefits and risks of the proposed procedure, a rhizotomy. He also reviewed the testimony of the respondent and his wife relating to the respondent’s medical condition, new employment in Thunder Bay as a clergyman, recent marriage, and birth of two children. These are precisely the types of factors mentioned as being worthy of consideration by the court in Reibl v. Hughes, at pp. 898-99.

[10] Combining these factors, we can find no basis for interfering with the trial judge’s conclusion that “a person in Mr. Edwardson’s circumstances would reasonably decline the rhizotomy procedure, particularly at C2, 3 if fully and lawfully informed of the benefits and risks.”

[11] Third, the appellant contends that the award of general damages of $200,000 is too high.

[12] We disagree. The trial judge carefully documented the physical, psychological and emotional effects on the appellant of the stroke caused by the failed rhizotomy. His award of general damages is entitled to great deference.

[13] Fourth, the appellant contends that the trial judge’s award of $100,000 damages for future economic loss was speculative and should not have been made.

[14] We do not accept this submission. The trial judge carefully reviewed the respondent’s previous and current medical condition. He also took account of both the professional successes and disappointments in the years following the failed medical procedure. Both the trial judge’s decision to award some damages in this category and the quantum of his award seem reasonable to us.

[15] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $20,000, inclusive of disbursements and applicable taxes.

Released: October 26, 2012 (“J.C.M.”)

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”