Court of Appeal for Ontario
Date: August 29, 2019
Docket: C65534
Judges: Paciocco, Harvison Young and Zarnett JJ.A.
Between
Albert Solomon Plaintiff (Respondent)
and
Read Mohamed Ali Abughaduma, The Scarborough Hospital, General Site; John Doe and Jane Doe Defendants (Appellant)
Counsel
For the appellant Read Mohamed Ali Abughaduma: Anu Koshal and Natalie V. Kolos
For the respondent: Albert Solomon, acting in person
Appearing as amicus curiae: Shantona Chaudury and Brodie Noga
Heard: August 14, 2019
On appeal from: The judgment of Justice Janet Wilson of the Superior Court of Justice, dated May 28, 2018, with reasons reported at 2018 ONSC 3287, 49 C.C.L.T. (4th) 125.
Paciocco J.A.:
Overview
[1] Dr. Abughaduma was found liable to pay $20,000 for general damages and $40,000 for lost income to Albert Solomon for having failed to obtain informed consent from Mr. Solomon before performing total wrist fusion surgery on him. After that surgery, Mr. Solomon was no longer able to earn money as a golf professional.
[2] Dr. Abughaduma appeals the trial judge's liability and damage decisions. Although he does not contest the trial judge's finding that he breached his duty to warn Mr. Solomon, he argues that she erred in law by failing to apply the "but for" test for causation. Indeed, he urges that causation was disproved on the trial judge's own factual findings.
[3] Second, he argues that the trial judge erred in law in deciding on her own motion and contrary to the expert evidence that Dr. Abughaduma had a duty to warn Mr. Solomon of the risk of regional sympathetic dystrophy (RSD), a rare post-operative chronic regional pain syndrome that the trial judge found Mr. Solomon to have developed.
[4] Finally, Dr. Abughaduma argues that the trial judge made several palpable and overriding errors in coming to her decision, including: (1) misapprehending the evidence of defence expert, Dr. van Schroeder, about the impact of total wrist surgery on the ability to play golf; (2) misapprehending the evidence of Dr. Axelrod about the severity of Mr. Solomon's arthritis; and (3) misapprehending Mr. Solomon's own testimony about the nature of the complaints he made to Dr. Abughaduma. Dr. Abughaduma contends that this latter misapprehension caused the trial judge to fail to give proper consideration to Dr. Abughaduma's "hindsight" defence.
[5] For the reasons that follow, I do not accept any of these grounds of appeal and would dismiss the appeal.
The Material Facts
[6] For many years, Mr. Solomon earned his living primarily as a golf teacher and golf hustler. With age, he began having problems with his left wrist that caused him pain and interfered with his golf game. After several years of discomfort and reduced wrist flexion he wanted these problems to be addressed. Initially, the medical doctors he consulted attempted to manage his condition with physiotherapy and anti-inflammatory medication. Dissatisfied with the results, Mr. Solomon decided to "get serious". He was referred to Dr. Abughaduma, an orthopaedic surgeon to arrange for surgical intervention.
[7] On February 25, 2010, when Mr. Solomon was 73 years old, Dr. Abughaduma performed total wrist fusion surgery on Mr. Solomon's left wrist. This was achieved by inserting a four-inch metal plate above Mr. Solomon's wrist joint and then placing Mr. Solomon's wrist in a cast. Although Mr. Solomon's ability to bend his wrist was seriously compromised before the operation, he could still bend his wrist. The surgery ended that.
[8] When the cast was removed on March 9, 2010, Mr. Solomon discovered for the first time that a metal plate had been inserted, and that he had lost all wrist flexion. After the staples were removed, he was placed in another cast. This second cast was removed some six weeks later. Mr. Solomon's wrist proved to be extremely swollen and he could not move his fingers. He was prescribed Percocet and physiotherapy to assist his convalescence. By August 17, 2010, Mr. Solomon was asking Dr. Abughaduma to remove the metal plate. Dr. Abughaduma discouraged this, advising Mr. Solomon that removing the metal plate would not "make a lot of difference to the stiffness".
[9] In December 2010, Mr. Solomon sought a second opinion. In July 2011, he managed to see Dr. Terry Axelrod, an experienced upper hand and upper extremity surgeon. As expected from the kind of surgery he had received, Mr. Solomon had no wrist flexion or extension when he met with Dr. Axelrod. However, he also had pain in his fingers and wrist, and hand stiffness so severe that he could not bring his fingers down to his palm, meaning he could not grip. His hand was like a "lobster claw".
[10] After studying Mr. Solomon's pre-op and post-op x-rays, Dr. Axelrod explained to Mr. Solomon that there had been surgical alternatives to a full wrist fusion.
[11] He also cautioned Mr. Solomon that although there was a 50% to 60% chance that further surgery, including removing the metal plate, could improve things by increasing the flexion in his hand and possibly reducing his pain, further surgery would not make his hand or wrist normal.
[12] In October 2011, Mr. Solomon had the further surgery. This second surgery succeeded in improving Mr. Solomon's grip so that he could pick up a coffee cup, but he still could not grip a golf club, and his wrist was still fused and immobile.
[13] On February 23, 2017, Mr. Solomon sued Dr. Abughaduma in negligence, claiming damages for pain and suffering and lost income from his incapacity to play golf.
[14] On December 7, 2017, all of Mr. Solomon's claims were dismissed, "save and except for the claim that Dr. Abughaduma failed to obtain [Mr. Solomon's] informed consent". That claim proceeded to trial. Central to Mr. Solomon's claim is his assertion that had he been advised that he was having total wrist fusion surgery, he would not have had the procedure, and that the surgery he did have has prevented him from playing golf.
[15] During the trial, competing expert evidence was provided. Most materially, Dr. Axelrod, called by Mr. Solomon, testified that Mr. Solomon's pre-operative wrist arthritis was moderate and localized. Therefore, there were available surgical options short of a total wrist fusion.
[16] Defence expert Dr. von Schroeder testified that Mr. Solomon's pre-operative wrist arthritis was severe, precluding the other surgical options. Dr. von Schroeder also testified that he has had patients who have opted for the same total wrist fusion surgery that Mr. Solomon had and played better golf afterwards. This evidence was offered in support of the defence theory that a reasonable person in Mr. Solomon's shoes would have consented to the surgery, even if properly informed.
[17] The trial judge found in Mr. Solomon's favour. In the course of doing so, she made the following findings that are material to this appeal:
Mr. Solomon informed Dr. Abughaduma that he earned a living playing golf, wanted the surgery to reduce his pain to improve his golf game, requested the kind of wrist fusion surgery he saw on the internet that would help him "cock his wrist better", and that he would "need to be able to cock his wrist to hold a golf club";
At the time, Mr. Solomon did not have "generalized advanced arthritis of the entire wrist". Therefore, surgical options short of total wrist fusion were available;
Mr. Solomon had not been provided with adequate disclosure before the total wrist fusion surgery. Specifically, he was not advised of other available surgical options and he "was not told that he would lose all mobility in his wrist as a result of [the procedure Dr. Abughaduma was proposing] and that a metal plate would be inserted in his wrist."
Had proper disclosure been made, Mr. Solomon would not have agreed to a total wrist fusion, and would have "in all probability" opted for one of the alternative surgical options that would not have totally eliminated his wrist movements, or perhaps he would have chosen to play through the pain;
A reasonable person in Mr. Solomon's shoes, properly informed, would make the choice not to have total wrist fusion surgery;
During the surgery, Mr. Solomon contracted RSD, "a rare and unfortunate risk inherent with all surgeries" that caused considerable pain and the loss of function in Mr. Solomon's fingers; and
Dr. Abughaduma did not tell Mr. Solomon about the "rare and devastating risk of RSD", and the failure to do so was a breach of Dr. Abughaduma's duty to disclose.
Issues
[18] Dr. Abughaduma appeals both the liability and damages findings. In the appeal, he does not contest the trial judge's factual determination that Dr. Abughaduma failed to secure Mr. Solomon's informed consent to the surgery, or that Mr. Solomon would not have had total wrist fusion surgery had that occurred. However, he claims that the trial judge made other material errors. Those alleged errors can best be analysed in the following order:
A. Did the trial judge err by holding that the risk of RSD should have been disclosed?
B. Did the trial judge err in analyzing the law of causation?
C. Did the trial judge misapprehend or improperly reject Dr. von Schroeder's evidence?
D. Did the trial judge misapprehend Dr. Axelrod's evidence?
E. Did the trial judge misapprehend Mr. Solomon's complaint, thereby failing to properly analyse the defence theory of "hindsight"?
Analysis
A. Did the Trial Judge Err by Holding That the Risk of RSD Should Have Been Disclosed?
[19] Dr. Abughaduma urges that the trial judge erred in finding that the risk of RSD should have been disclosed. He contends that: (1) RSD is too rare and unpredictable a condition to give rise to a duty to warn, and (2) the trial judge erred in finding this breach to have occurred given that it was not pleaded, and she raised it of her own initiative.
[20] In my view, we need not resolve whether either alleged error occurred. The trial judge, mindful that this issue had been raised and explored only tangentially, made clear that the RSD disclosure issue was not necessary to her decision. That being so, if the trial judge did commit either or both alleged errors those errors are immaterial to her ultimate decision. I would therefore dismiss this ground of appeal.
B. Did the Trial Judge Err in Analyzing the Law of Causation?
[21] Dr. Abughaduma argues that the trial judge erred in analyzing the law of causation. Specifically, he contends that the trial judge erred in applying the "but for" test in the informed consent context by failing to determine whether the failure to warn brought about Mr. Solomon's injuries. More specifically, he argues that the trial judge failed to find that the injuries would been avoided if he had been properly warned and chosen one of the alternative surgeries: Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, [2013] 2 SCR 357; Van Dyke v. Grey Bruce Regional Health Centre, 255 D.L.R. (4th) 397 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 335.
[22] Central to Dr. Abughaduma's argument is his thesis that the damages the trial judge found arose from the RSD. His argument is that since the trial judge accepted correctly that RSD is a random risk in any surgery and could have been contracted from the surgical alternatives, a causation finding is not possible; instead of holding Dr. Abughaduma liable for damages, he should have been absolved of responsibility.
[23] This argument raises interesting causation and remoteness questions but, in my view, we need not consider them because Dr. Abughaduma's central thesis about the basis for the trial judge's decision – that the damage arose from the RSD – is not correct. At most, it can be credibly argued that the trial judge may have allowed the RSD symptoms to exert modest influence on her general damage assessment. But it cannot realistically be contended that the trial judge rested her finding that Mr. Solomon lost the ability to golf on the RSD symptoms. The trial judge asserted repeatedly in her reasons for judgment that it was the total wrist fusion surgery that Mr. Solomon had without proper warning that prevented him from playing golf. She said so more than a half dozen times including in this passage in the section of her endorsement called "Impact of Loss of Range of Motion":
A total wrist fusion offered the best chance to totally eliminate pain, but it also eliminated all wrist movement, which impaired the ability to cock the wrist: essential to the Plaintiff's golfing livelihood.
[24] In his submission, Dr. Abughaduma ignores these passages and focuses primarily on two others. The first passage he features appears shortly after the trial judge had already observed that the total wrist fusion surgery rendered Mr. Solomon's wrist joint immobile making it impossible for him to play golf, and immediately after she described how Mr. Solomon had also developed RSD. In that featured passage the trial judge said, in relevant part:
This [RSD] condition meant that post-surgery the Plaintiff had no movement in his wrist, and also that he lost functional use of his fingers. His pain increased…. The loss of use of his fingers and the lobster claw configuration was the result of the RSD. He could not play golf. The Plaintiff did not know until after the surgery that the metal plate had been inserted in his wrist preventing any movement of the wrist. He is a right handed golfer. It was essential to him with the limited movement that he had prior to surgery that he be able to cock his left wrist to play and teach golf.
[25] Read in context, the meaning of this passage is clear. The trial judge is saying that in addition to the fact "the Plaintiff had no movement in his wrist", a condition she had just described as preventing Mr. Solomon from playing golf, he also lost functional use of his fingers because of the RSD. That too meant that he could not play golf, but as she had already established and then repeated, the total wrist fusion surgery was enough on its own to prevent Mr. Solomon from playing and teaching golf.
[26] Dr. Abughaduma also placed heavy reliance on the passage in which the trial judge expressed her general damages findings:
I conclude that the general damages in the amount of $20,000.00, is fair and reasonable. The Plaintiff went through two surgeries. His hand function improved after the second surgery, but has not improved to his functioning prior to the surgery. The Plaintiff had serious increased pain following the surgery. The pain was for at least two years after the surgery was worse than his pre-operative state, in spite of the Plaintiff taking significant doses of Percocet medication. The Plaintiff lost his quality of life as a golf teacher and respected golfer. Today, he cannot play golf. He became socially isolated, and embarrassed to meet people he knew in his former life. As he lost his source of income, he lost his condominium. He is now living in his son's basement.
[27] It can be credibly argued that by including a reference to impaired hand function, a symptom of RSD, the trial judge may have allowed her RSD findings to leak into her general damage assessment. However, it cannot be credibly argued that the RSD symptoms was the damage she found. This passage must be read in context, and the trial judge had said repeatedly that Mr. Solomon lost his ability to play golf because of the total wrist fusion that Dr. Abughaduma performed without his informed consent. The evidence also established that after the second surgery to remove the metal plate, Mr. Solomon's wrist remained immobile, and at no point did the trial judge ever suggest that the RSD caused or even contributed to that loss of mobility. Moreover, although not definitive, the trial judge had already said that her findings do not depend on the failure to warn about the RSD symptoms "as there were many other problems with the scope of the disclosure that were clearly raised and argued". Finally, the RSD symptoms are not required to explain the relatively modest general damage award of $20,000 for pain and suffering arising from two surgeries, the loss of the ability to golf, and the social isolation and embarrassment that came with it, all of which are unequivocally causally linked to the failure to warn Mr. Solomon that the surgery would immobilize his wrist. In all of the circumstances, a finding that the trial judge erred in applying the law of causation is not realistic.
[28] Nor would I re-adjust the general damage award to remove any influence that RSD symptoms arguably had on the general damage assessment. I would not do so, even on the assumption that Dr. Abughaduma's submission is correct that damages for RSD cannot properly be awarded in the circumstances of this case. For the reasons given, a fair contextual reading of the trial judge's general damage passage is that although she mentioned the limited hand function in passing when describing the effect of the surgeries, her general damage assessment is premised on the pain and suffering from the surgeries and the sequalae of the incapacity to golf that total wrist fusion caused.
[29] I would therefore dismiss the causation appeal.
C. Did the Trial Judge Misapprehend or Improperly Reject Dr. von Schroeder's Evidence?
[30] Dr. von Schroeder, called by Dr. Abughaduma, testified that total wrist fusion surgery would improve Mr. Solomon's golf game. Dr. Abughaduma contends that the trial judge erred in rejecting this evidence by: (1) rejecting it because it was not contained in Dr. von Schroeder's expert report which was never admitted as evidence; and (2) mischaracterizing the evidence. The mischaracterization argument takes issue with the trial judge's conclusion that Dr. von Schroeder's opinion was a general one, arrived at without taking into account the unique aspects of Mr. Solomon as a professional golf teacher and hustler. Relatedly, Dr. Abughaduma urged before us that the only expert evidence before the court was that Mr. Solomon's total wrist fusion would not prevent him from golfing.
[31] The submission that the trial judge rejected Dr. von Schroeder's opinion because it was not contained in his expert report is too simplistic. The relevance she gave the written report was more subtle and damning, and in no way improper. She found that, in contrast to his careful and fairly worded written report, Dr. von Schroeder lost his bearing as an expert witness and became an advocate in his oral testimony. The expert report was properly before the trial judge to be used in evaluating the credibility of Dr. von Schroeder's in court testimony and she committed no error in doing so.
[32] In contrast, there is some basis for the submission that the trial judge failed to appreciate that Dr. von Schroeder affirmed his opinion even after confronted with the fact that Mr. Solomon made his living as a golfer. In this sense, she mischaracterized his opinion as a generalization made "without taking into account the unique aspects of this particular patient". Yet I would not allow the appeal because of this. In a devastating critique of his evidence, the trial judge gave myriad reasons for not accepting the evidence of Dr. von Schroeder. She found that Dr. von Schroeder offered opinions based on inaccurate factual assumptions and without adequate foundation (he offered opinions about the nature of Mr. Solomon's arthritic condition without seeing x-rays or the patient), and that he exceeded his established expertise in even offering the opinion in question, related as it was to what a reasonable person in Mr. Solomon's position would do. These shortcomings render the trial judge's oversight of an answer provided in cross-examination immaterial.
[33] Nor do I agree with Dr. Abughaduma that the trial judge erred by finding, contrary to the expert evidence, that the total wrist surgery prevented Mr. Solomon from playing golf. Even leaving aside that Dr. von Schroeder himself agreed in cross-examination that the left wrist cocks during a golf swing and that the wrist cock would be extremely important to Mr. Solomon in deciding whether to have the surgery, the trial judge was entitled to accept Mr. Solomon's unambiguous and adamant testimony that it was impossible to swing properly or instruct golf with a totally fused wrist.
D. Did the Trial Judge Misapprehend Dr. Axelrod's Evidence?
[34] If Mr. Solomon's arthritis was advanced enough, alternative surgeries would not have been viable. There could therefore be no liability for failing to advise Mr. Solomon about non-viable surgeries. During cross-examination, Mr. Solomon's expert, Dr. Axelrod, agreed that it was fair for Dr. Abughaduma to infer that Mr. Solomon had advanced osteoarthritis. The trial judge did not include this answer in summarizing Dr. Axelrod's evidence. Dr. Abughaduma contends that this is a fatal error, since, if credited, this answer undermines this theory of liability.
[35] I do not agree. Dr. Axelrod's position was that Mr. Solomon's arthritis was localized, not throughout the entire wrist. Dr. Axelrod's concession must be understood in that context. Even though it was fair to conclude that Mr. Solomon's arthritis was severe in that location, that would not have altered Dr. Axelrod's position, accepted by the trial judge, that the surgical alternatives were viable.
E. Did the Trial Judge Misapprehend Mr. Solomon's Complaint, Thereby Failing to Properly Analyse the Defence Theory of "Hindsight"?
[36] Dr. Abughaduma's position at trial was that Mr. Solomon never complained about the total wrist fusion surgery and that his evidence that he did so is distorted by hindsight; his real complaint was that Dr. Abughaduma "botched" the surgery.
[37] In advancing this position, Dr. Abughaduma relied upon written complaints made by Mr. Solomon that do raise the botched surgery but not the total wrist fusion. As well, during cross-examination Mr. Solomon agreed with a suggestion that he complained about the surgery being botched but the trial judge did not address this response in her reasons.
[38] This "hindsight" line of attack was important to the defence strategy because, if true, it could cast doubt on Mr. Solomon's claim that he was not told that his wrist would be fused. It would also show that Mr. Solomon's concern was with the outcome rather than the type of procedure, and that he would have followed through with the operation even if properly warned. Despite indicating that he was not contesting the failure to warn finding on appeal, Dr. Abughaduma did not abandon this ground of appeal, and so I will address it.
[39] At bottom, this is not a misapprehension of evidence challenge, as Dr. Abughaduma claims. It is a challenge made to the factual finding of the trial judge to accept Mr. Solomon's evidence that he complained about his unexpected total wrist fusion surgery "loud and clear". This was a credibility finding that the trial judge was entitled to make, and she gave cogent reasons for why she preferred the testimony of Mr. Solomon about what was said during the follow up meetings to Dr. Abughaduma's recall.
[40] In coming to that decision, the trial judge was not obliged to refer to Mr. Solomon's cross-examination answer. In any event, it is controversial whether that answer bears the probative value that Dr. Abughaduma seeks to assign it. The answer was not an unequivocal acknowledgement by Mr. Solomon that botched surgery was his only complaint. He was responding to leading questions that, fairly read, can be taken to have been framed as pertaining to a particular complaint. In my view, an answer would have to be much clearer than the one at issue here before a trial judge would be obliged to include it in her reasons, and to treat it as an acknowledgement that the real complaint is not the one that is being advanced at trial.
[41] I would dismiss this ground of appeal.
Conclusion
[42] I would therefore dismiss the appeal. Costs submissions are to be received within 10 working days of the release of this decision, not to exceed 5 pages and to be accompanied by a costs outline.
Released: August 29, 2019
"David M. Paciocco J.A."
"I agree. Harvison Young J.A."
"I agree. B. Zarnett J.A."