COURT OF APPEAL FOR ONTARIO DATE: 20240416 DOCKET: COA-23-CV-0323

Rouleau, Benotto and Copeland JJ.A.

BETWEEN

Michael Denman, Andrea Denman, Olivia Denman and Isabel Denman Plaintiffs (Respondents/ Appellants by way of cross-appeal)

and

Ivan Radovanovic, Vitor Mendes Pereira, Lee-Ann Slater, Ronit Agid, Karel ter Brugge, Johnny Ho Yin Wong, John Doe #1, John Doe #2 and John Doe #3 Defendants (Appellants/ Respondents by way of cross-appeal)

Counsel: J. Thomas Curry, Jaan Lilles and Katherine R. Costin, for the appellants Sloan Mandel and Aleks Mladenovic, for the respondents

Heard: November 29, 2023

On appeal from the judgment of Justice Jane E. Ferguson of the Superior Court of Justice, dated February 16, 2023, with reasons reported at 2023 ONSC 1160, and from the costs order, dated June 15, 2023, with reasons reported at 2023 ONSC 3621.

Rouleau J.A.:

OVERVIEW

[1] The central issues underlying this appeal are the nature and extent of a physician’s duty to obtain informed consent for a multi-step course of elective medical treatment, and on which physicians involved in treatment does this duty rest. I will begin by laying out the factual matrix and the law of informed consent as it applies to these facts. I will then address each of the grounds raised by the appellants in turn.

[2] In 2015, the respondent Michael Denman suffered a catastrophic brain bleed as a result of a medical procedure aimed at curing an anterior ventricle malformation (“AVM”) in his brain. There is no suggestion that the procedure, which was part of a multi-step treatment plan, was performed in a negligent manner. Rather, the respondents brought a claim alleging that the appellants, three doctors at the Toronto Western Hospital (“TWH”), had failed to obtain Mr. Denman’s informed consent. The respondents sued in negligence, alleging that if the appellants had not breached their duty of disclosure, neither Mr. Denman nor a reasonable person in his circumstances would have proceeded with the recommended elective treatment plan.

[3] The parties agreed on damages of $8.5 million. The sole issue at trial was whether the appellants were liable based on a failure to obtain informed consent. Following a 26-day trial, the trial judge held that all three appellants were liable. In reaching that conclusion, she stated:

Had appropriate disclosure been made, neither Mr. Denman nor a reasonable patient in his circumstances would have elected to proceed with any of the medical interventions recommended by the [appellants] at the time the recommendations were made. I agree that any decision to treat, or not to treat, would have been deferred by Mr. Denman until after his retirement so he could amass savings, with the full support of his family and his employer.

[4] The appellants challenge the trial judge’s judgment and her costs decision. In doing so, they raise a number of issues, including:

1. Sufficiency of reasons: They allege that the trial judge’s reasons were inadequate, especially but not limited to, her reasons relating to informed consent.
2. Law of informed consent: They submit that the trial judge made errors in applying the law of informed consent. In particular, they submit that in order to be liable for providing treatment without a patient’s informed consent, a physician must have provided the treatment that caused injury to the plaintiff. In this case, Dr. ter Brugge did not perform any procedures and Dr. Radovanovic only performed emergency surgery after the procedure that caused the injury. They also submit that the only procedure at issue was the third embolization – the one that caused the injury - and not the entire plan of treatment.
3. Evidentiary issues: They raise a number of evidentiary issues, including whether the trial judge erred in disqualifying one of the appellants’ proposed experts, Dr. Gary Redekop.
4. Costs: They challenge the $3 million costs award, which they argue was made on an “enhanced scale”.

[5] The appellants maintain that the appeal should be allowed, and the claim dismissed, or a new trial ordered.

[6] The respondents cross-appeal, asking that if the appeal is allowed in whole or in part and a new trial ordered, the appellants be precluded from improving their case with fresh expert evidence.

[7] For the reasons that follow, I would dismiss the appeal and refuse leave to appeal costs. Given this conclusion, it is unnecessary to deal with the cross-appeal.

FACTS

(1) The parties

(a) The plaintiffs/respondents

[8] Mr. Denman was 54 years old at the time of the medical procedure that left him with paralysis on the left side of his body.

[9] Prior to his traumatic brain injury, Mr. Denman was the primary wage earner in his household.

[10] He is married to Andrea Denman and together they have two daughters who still live at home. One of his daughters has a disability. At the time of the events, Mr. and Mrs. Denman were still trying to get a financial plan together for her.

[11] Mrs. Denman testified at trial that she and her husband made significant medical decisions about the treatment of his AVM jointly.

(b) The defendants/appellants

[12] The three appellants were all physicians at TWH.

[13] As detailed below, Dr. ter Brugge, a diagnostic radiologist, was part of the multidisciplinary team that formulated Mr. Denman’s treatment plan and was the person tasked with proposing the plan of treatment to him. Dr. ter Brugge did not perform any procedures on Mr. Denman.

[14] Dr. Radovanovic, a neurosurgeon, was also part of the team that formulated the proposed plan of treatment. He performed emergency surgery on Mr. Denman after his third failed embolization.

[15] Dr. Pereira is a neuroradiologist and neurosurgeon. He moved to Toronto in August 2014 and received his license to practice medicine from the College of Physicians and Surgeons of Ontario on August 15, 2014. While he was not employed at TWH at the time Mr. Denman’s treatment plan was formulated, he performed the three embolization procedures on Mr. Denman, including the one that resulted in his traumatic brain injury.

(2) Mr. Denman’s medical history and timeline of events

(a) May 2010-April 2014: discovery of the AVM, initial treatment, and period of stability

[16] On May 10, 2010, Mr. Denman suffered a stroke or seizure. He was taken by ambulance, first to Southlake Regional Health Centre, then to Saint Michael’s Hospital, where he was diagnosed with an AVM and a flow-related aneurysm. On May 11, 2010, Mr. Denman received treatment which resolved the aneurysm but not the AVM.

[17] After determining that the AVM was stable, Mr. Denman was discharged on June 9, 2010.

[18] On October 8, 2010, Mr. Denman’s case was reviewed by the Gamma Knife unit at TWH. He underwent Gamma Knife stereotactic radiosurgery on March 2, 2011. This procedure is a relatively low risk and non-invasive procedure involving the use of gamma radiation. It did not resolve the AVM.

[19] Following the radiosurgery, Mr. Denman’s AVM remained stable. Other than a few headaches that responded to treatment, Mr. Denman was doing well. He returned to work on September 6, 2012.

[20] In 2013 and 2014, Mr. Denman was seen in follow-up at TWH. His condition continued to remain stable.

(b) 2014-2015: course of treatment giving rise to Mr. Denman’s injury

(i) AVM case conference

[21] A decision was made to re-conference Mr. Denman’s case to discuss what options were open to him going forward.

[22] On May 8, 2014, Mr. Denman’s case was reviewed at a multidisciplinary AVM case conference at TWH. The multidisciplinary AVM team, which included Dr. ter Brugge and Dr. Radovanovic but not Dr. Pereira (who did not practice at TWH at the time), formulated a plan of treatment meant to effect a cure of Mr. Denman’s AVM.

[23] The team’s plan of treatment included a series of embolizations, followed by a possible microsurgical resection of the AVM. Notably, in order for Mr. Denman to benefit from a reduction of his risk of spontaneous bleed, his AVM had to be fully treated. As such, procedures achieving only partial embolization would result in no benefit to Mr. Denman.

[24] Both, embolizations and surgical resections carry a risk of morbidity and mortality. Mr. Denman’s AVM was assigned a 4 out of 5 on the Spetzler-Martin Grading Scale, which ranks AVMs according to the difficulty and risk associated with their surgical treatment. The nature and degree of risk associated with the proposed treatment plan, which was a central issue at trial, will be discussed more fully below.

(ii) Consultation with Dr. ter Brugge

[25] Following the multidisciplinary AVM conference, Dr. ter Brugge was tasked with conveying the necessary information about the risks and benefits of Mr. Denman’s options so that he could make an informed decision about whether to pursue the recommended treatment plan.

[26] Dr. ter Brugge met with Mr. Denman on June 5, 2014. At the meeting, Dr. ter Brugge discussed the risks of a single embolization procedure, which was the first step in the plan of treatment for Mr. Denman’s AVM. Dr. ter Brugge testified that he told Mr. Denman that the embolization carried a 3 to 5 percent risk of stroke or death. Mr. Denman was directed to a TWH website that reported that a single embolization treatment carried a small chance of stroke, about 1 to 3 percent.

[27] Notably, Dr. ter Brugge did not discuss the possibility that further treatment would likely be required. Nor did he provide Mr. Denman with an estimate of his lifetime risk should he forego treatment.

(iii) Further consultation with Dr. ter Brugge

[28] On August 5, 2014, Dr. ter Brugge met again with Mr. Denman in preparation for his upcoming embolization procedure. Dr. ter Brugge’s note (dictated two days later) indicates that he advised Mr. Denman that the risk of stroke or death associated with a single embolization treatment was 3 to 5 percent. Mr. Denman provided his consent to the first embolization treatment.

(iv) First embolization

[29] The first embolization was conducted on August 19, 2014, by Dr. Pereira. Only partial embolization was achieved.

(v) Second embolization

[30] Follow-up treatment was recommended, and, on December 9, 2014, Dr. Pereira performed a second embolization of Mr. Denman’s AVM. Again, only partial embolization was achieved. As the trial judge noted in her reasons, there is no record that any informed consent discussion took place after the first embolization and before the second embolization.

(vi) Consultation re: third combined procedure

[31] On January 29, 2015, Dr. Pereira and Dr. Radovanovic met with Mr. and Mrs. Denman to propose and discuss what was expected to be the final treatment: a third embolization procedure to be performed by Dr. Pereira, followed by a microsurgical resection of the AVM to be performed by Dr. Radovanovic.

[32] Dr. Pereira testified that he told the Denmans that the annual risk of Mr. Denman’s AVM rupturing without treatment (or, in other words, his “natural history” risk) was 2 to 4 percent, with a lifetime natural history risk of 50 to 60 percent. With respect to the impact of a rupture, Dr. Pereira offered a “one third” rule of thumb, that is one third of patients would experience a life-threatening event, one third would be left with a deficit, and one third would recover to their baseline.

[33] Dr. Pereira contrasted this risk with the risk of the proposed treatment. He explained that the risk of an adverse outcome from the combined treatment was 10 to 15 percent, of which 3 to 5 percent would be a severe, life-threatening complication. He further explained that, once the AVM had been removed, Mr. Denman would be cured.

[34] Dr. Radovanovic testified to having informed Mr. and Mrs. Denman that the risk of the combined procedure was around 10 percent and that this figure included deficits ranging from minor to disabling.

[35] At the conclusion of the meeting, Mr. Denman signed the consent form.

(vii) Combined procedure resulting in injury

[36] On June 23, 2015, Dr. Pereira performed the third embolization. Post-operatively, Mr. Denman showed signs of complications from the procedure and was taken back to the operating room. Dr. Radovanovic performed emergency surgery to remove the AVM and stop the bleeding causing the complication.

[37] As a result of the brain bleed, Mr. Denman was left densely hemiplegic (one-sided paralysis) on his left side, fully dependent for all care, and only able to communicate by writing and gesturing.

(3) The trial

[38] The central issue at trial was informed consent. More specifically, the parties disputed what information ought to have been disclosed to Mr. Denman, what in fact was disclosed to him, and finally, if informed consent was not obtained, what would Mr. Denman and a reasonable person in his situation have done had proper disclosure been made. The parties also disputed which appellants should be liable if informed consent was not given. The appellants argued that, if there was any liability, it could only rest on the doctor who performed the procedure that caused the injury to Mr. Denman, namely Dr. Pereira.

(4) Decision below

[39] At the conclusion of the trial, the trial judge granted judgment against all three appellant doctors. She reached the following key conclusions:

1. All three of the appellants failed to obtain “Mr. Denman’s informed consent to a multi-step course of elective medical intervention”.
2. “[H]ad appropriate disclosure been made, neither Mr. Denman nor a reasonable patient in his circumstances would have elected to proceed” with the proposed plan of treatment.
3. The risk assessments provided to Mr. Denman by Dr. Pereira and Dr. Radovanovic prior to the June 23, 2015, third embolization and planned microsurgical resection of the AVM, were grossly misleading and deficient and that had “appropriate disclosure been made, neither Mr. Denman nor a reasonable patient in his circumstances would have elected to proceed with the June 23 and 24, 2015, combined procedure”.
4. Had appropriate disclosure been made, Mr. Denman would have deferred his decision on treatment “until after his retirement, with the full support of his family and his employer (so that he could continue to earn significant income to support his family”.

[40] The trial judge’s reasons are discussed in more detail below in my discussion of the sufficiency of her reasons.

ANALYSIS

[41] I have divided my analysis into four main sections. In the first, I begin by setting out the law governing informed consent and sufficiency of reasons, as this law informs the discussion of the issues that follow. In the second section, I address the alleged errors and deficiencies in the reasons relating to informed consent. Third, I will deal with the evidentiary issues, which include the exclusion of an expert witness. Finally, I will address costs.

(1) Legal principles

(a) The law of informed consent

[42] At the outset it is important to distinguish between consent as it relates to the tort of battery and informed consent in the context of a negligence claim. As some have commented, the terminology “informed consent” has led to some confusion. [1]

[43] Where there is a failure to make adequate disclosure to a patient, this gives rise to a claim in negligence. It does not, however, vitiate consent to treatment so as to give rise to a claim in battery. A claim in battery will only arise in circumstances where there was no consent at all or where the treatment went beyond the scope of consent: Reibl v. Hughes, [1980] 2 S.C.R. 880, at pp. 890-91.

[44] The issue in this appeal is not whether consent was given to the various procedures Mr. Denman underwent. In each case, consent was obtained from Mr. Denman. Had consent not been obtained, clearly the physician who carried out the procedure would be liable in battery. Rather, the issue here is whether the consent that Mr. Denman gave was an informed consent.

[45] It is well established that, before undertaking the elective treatment of a patient, a physician has a duty, without being questioned, to provide adequate information to the patient. This involves disclosing the nature of the proposed treatment and any material, special, or unusual risks of the treatment: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, at para. 24. Where more than one viable option to manage the patient’s medical condition is available, the patient is also to be informed of the relative and comparative risks and benefits between the options. The extent to which a doctor must disclose and discuss alternative treatments will depend upon what has been described as “a myriad of factual circumstances”: Van Dyke v. Grey Bruce Regional Health Centre (2005), 255 D.L.R. (4th) 397 (Ont. C.A.), at para. 67.

[46] This court affirmed the importance of a patient being equipped with the information necessary to make an informed choice between alternative courses of treatment in Van Dyke, at para. 67:

The ultimate decision whether to proceed with a particular treatment rests with the patient and not the doctor. The doctor must equip the patient with the information necessary to make an informed choice. Where there is more than one medically reasonable treatment and the risk/benefit analysis engaged by the alternatives involves different considerations, a reasonable person would want to know about the alternatives and would want the assistance of the doctor’s risk/benefit analysis of the various possible treatments before deciding whether to proceed with a specific treatment. Put differently, a reasonable person could not make an informed decision to proceed with treatment “A” if that patient was unaware of the risks and benefits associated with treatment “B”, a medically appropriate alternative treatment. [Emphasis added.]

[47] A patient alleging lack of informed consent must not only prove that the information provided was inadequate but must also establish causation. Specifically, the patient must prove that (1) they would not have undergone the procedure had they been adequately informed, and (2) a reasonable person in the patient’s position would not have undergone the procedure if given adequate information: Watson v. Dr. Shawn Soon, 2018 ONSC 3809, 50 C.C.L.T. (4th) 83, at para. 82, citing Bollman v. Soenen, 2014 ONCA 36, 315 O.A.C. 90, at paras. 20-23. In other words, in assessing causation there is a subjective and modified objective test.

[48] To succeed in a claim of informed consent, it is sufficient that a plaintiff demonstrate that they would have declined treatment at that particular time, even if only to postpone it to a later date: Reibl, at p. 928; Felde v. Vein and Laser Medical Centre (2003), 68 O.R. (3d) 97 (C.A.), at para. 14; Ross v. Welsh, at paras. 156-57.

(b) The law re: insufficiency of reasons

[49] This court recently summarized the principles to apply when assessing the sufficiency of reasons in Levac v. James, 2023 ONCA 73. As has been often repeated, the touchstone is whether the reasons permit meaningful appellate review. Sossin J.A. reviewed how this determination is to be approached, at para. 76:

The adequacy of reasons must be determined functionally based on whether they permit meaningful appellate review. If they do, then an argument that the reasons are inadequate fails, despite any shortcomings. Adequacy is contextual, and includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. In general, reasons are to be read as a whole with the presumption that the trial judge knows the record and the law and has considered the parties' arguments. [Citations omitted.]

[50] Appellate courts are “cautioned against … reviewing [a] trial judge’s reasons with an overly critical eye”: Farej v. Fellows, 2022 ONCA 254, at para. 46, citing R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375.

[51] In this case, the appellants make a number of sweeping criticisms of the trial judge’s reasons, including that she made findings of credibility without sufficient explanation, failed to apply the facts to the law to satisfy the chain of reasoning, failed to explain why she accepted one party’s evidence over another, and neglected to make findings on key pieces of evidence. The appellants are critical that a significant portion of the reasons were copied almost verbatim from the respondents’ written submissions at trial.

[52] As I will explain, I am not satisfied that the reasons fail to permit meaningful appellate review despite some deficiencies, including that they could have been better structured, and that it was not ideal that the trial judge borrowed large portions of the respondents’ submissions.

(2) Informed consent

(a) Trial judge’s findings and conclusions re: subjective and modified objective tests

[53] As explained, the trial judge was required to determine what Mr. Denman and a reasonable patient in his circumstances would have done had adequate disclosure been made.

[54] By way of review, she found:

… [H]ad appropriate disclosure been made, neither Mr. Denman nor a reasonable patient in his circumstances would have elected to proceed with medical intervention that was to involve a series of embolizations, possibly and/or likely to be followed by a surgical resection.

[55] She also found that “neither Mr. Denman nor a reasonable patient in his circumstances would have elected to proceed with the June 23 and 24, 2015 combined procedure” (the combined third embolization and surgical resection).

[56] The appellants submit that the trial judge erred in conducting the subjective and modified objective causation analysis and that her reasons are deficient. I will unpack and address the appellants’ submissions on these points.

(b) Mr. Denman’s circumstances were considered

[57] On appeal, the appellants argue that the trial judge failed to consider Mr. Denman’s personal circumstances when applying the test for informed consent. Specifically, they highlight that he was eager to resolve his AVM in order to resume frequent travelling without fear of suffering a spontaneous rupture of his AVM while abroad. They argue that the trial judge’s finding that Mr. Denman would delay treatment until retirement, which was 11 years away, is unsupported by the evidence in light of this fact. [2]

[58] I disagree. The trial judge clearly considered Mr. Denman’s personal circumstances when applying the test for informed consent. Admittedly, all of the relevant evidence is not set out in the reasons and there is no section in the reasons that pulls together the trial judge’s findings in support of her conclusion that “neither Mr. Denman nor a reasonable person in his circumstances” would have elected to proceed with the various procedures. However, the reasons set out the relevant law and, read as a whole, adequately demonstrate that the trial judge was well aware of Mr. Denman’s personal circumstances in applying the law.

[59] Notably, although Mr. Denman’s disability precluded him from testifying, the evidence at trial from those who knew him personally disclosed not only that Mr. Denman intended to resolve his AVM so as to remove the risk of spontaneous bleed, but also that, at the time the plan of treatment was proposed, Mr. Denman:

a. was doing well and his AVM was asymptomatic; b. had resumed traveling for pleasure; c. had resumed his employment and his employer was prepared to accommodate his needs, even if that meant employing Mr. Denman in a different capacity; d. was the primary breadwinner; e. was 11 years away from retirement age; f. had two daughters still at home and was still trying to get a financial plan together for his daughter with a disability; g. was not a risk taker.

[60] It is in this context, which the trial judge properly considered, that Mr. Denman or a reasonable person in his circumstances would have assessed the relative risks and decided whether to treat his AVM or not and, should he wish to treat it, whether to treat it then or defer it to a later time.

(c) Risks that ought to have been disclosed

[61] The appellants submit that the trial judge erred in imposing a duty to provide exact statistical probabilities. They also take issue with the trial judge’s failure to make a specific finding on what risks ought to have been disclosed to Mr. Denman, which was a key issue at trial. This, they say, is necessary to understand the basis for the trial judge’s conclusion that, had the risks of the plan of treatment or the third combined treatment been adequately disclosed, neither Mr. Denman nor a reasonable person in his circumstances would have proceeded with treatment.

[62] As I will explain, I do not accept the appellants’ submissions on these points.

(i) No requirement to provide particular statistics

[63] The appellants submit that the trial judge erred in imposing a duty to provide exact statistical probabilities since case law makes clear that such level of detail is not required to fulfil the duty of disclosure.

[64] I disagree. On a fair reading of her reasons, the trial judge imposed no requirement to provide a specific calculation of the level of risk or specific statistics in explaining the risk. Rather, what was required in this case was that an order of magnitude or reasonable range of risks involved in the proposed treatment be disclosed.

(ii) Cumulative risks

[65] The trial judge explained in her reasons that Mr. Denman was looking to effect a cure and ought, even before undergoing the first embolization, to have been told of the risks involved in carrying out the whole plan of treatment to effect that cure.

[66] Although the trial judge did not make clear findings as to the precise risks or precise range of relative risks that ought to have been disclosed to Mr. Denman before deciding whether to embark upon the recommended plan of treatment, the reasons relate what the experts testified ought to have been disclosed and the trial judge’s acceptance of that evidence.

[67] It is apparent from the trial judge’s reasons that she relied on the evidence of Dr. Findlay, who estimated that the cumulative upfront risk of suffering a permanent neurological deficit if Mr. Denman proceeded with the plan of treatment was 30 to 50 percent. This evidence was not disputed. In fact, the appellants’ own expert at trial, Dr. Roy, admitted that Dr. Findlay’s risk assessment was not flawed.

[68] As noted by the trial judge, according to Dr. Findlay, this high level of up-front risk was to be compared to Mr. Denman’s lifetime risk of spontaneous bleed should he not undergo treatment, which was around 40 to 60 percent, although only a portion of such bleeds would result in serious disability or death. Dr. Findlay indicated that he personally would not have offered the option of medical intervention because “it was too high risk.”

[69] The trial judge also referred to Dr. Pereira’s testimony. Dr. Pereira had testified that, without treatment, Mr. Denman would only be subject to about a 1 percent per year risk of serious adverse outcome.

[70] In other words, had Mr. Denman been given the appropriate information, he would have weighed an immediate 30 to 50 percent upfront risk of permanent neurological deficit against a 40 to 60 percent risk of spontaneous bleed spread over a lifetime, of which only a fraction would have resulted in serious harm. In the circumstances, it is clear that neither Mr. Denman, nor a reasonable person in his situation, would have undertaken the suggested course of treatment.

[71] As a result, the trial judge’s conclusion that, had appropriate disclosure been made, neither Mr. Denman nor a reasonable patient in his circumstances would have elected to proceed with the multi-step course of elective medical intervention proposed was adequately explained in her reasons and fully supported by the record.

(iii) Risks of third combined procedure

[72] The appellants further argue that because the two first embolizations were carried out without incident they are legally irrelevant, and the only relevant risk assessment is for the third embolization and surgical resection procedure planned for June 23 and 24, 2015. They challenge the sufficiency of reasons, arguing that the trial judge did not make any clear findings as to what risks were disclosed to Mr. Denman prior to the combined third procedure, as well as what risks ought to have been disclosed.

[73] I will address the appellants’ submission that the only relevant risk assessment was for the combined third procedure later in these reasons. As for the adequacy of the trial judge’s reasons, a fair reading of them shows that the risks disclosed to Mr. Denman for the third combined procedure were inadequate – a finding that is well supported on the record.

[74] As outlined by the trial judge, Dr. Pereira and Dr. Radovanovic met with Mr. and Mrs. Denman on January 29, 2015, and recommended that Mr. Denman undergo a combined embolization and surgical resection. Dr. Pereira testified that he had advised that the risk of significant morbidity or mortality for this combined procedure was 3 to 5 percent.

[75] Mrs. Denman testified that, at the January 29 meeting, Dr. Pereira and Dr. Radovanovic advised that the risk of a serious complication from the combined procedure was only 2 percent, whereas the comparative risk to Mr. Denman suffering a spontaneous brain bleed if he chose to forego treatment was 4 percent per year compounding annually. The trial judge found that “Mrs. Denman was a credible witness and … [accept]ed her evidence”.

[76] Notably, as highlighted by the trial judge, the appellants’ own expert, Dr. Roy, testified that it would be absurd and misleading to tell the Denmans that there was anything less than a 10 to 15 percent risk of significant morbidity or mortality for the combined procedure. The trial judge accepted this evidence.

[77] In other words, even if the trial judge had rejected Mrs. Denman’s evidence and accepted Dr. Pereira’s evidence that the Denmans were told the risk of significant morbidity or mortality was 3 to 5 percent, that risk assessment was grossly deficient based on the appellants’ own expert.

[78] Significantly, even Dr. Pereira acknowledged that the risk communicated to the Denmans was understated. Dr. Pereira admitted that he was unaware that Dr. Radovanovic had a known 25% adverse outcome complication rate for AVM surgical resections and that, had he known of this statistic, he would have at least doubled the risk estimate communicated. In this regard, it is noteworthy that Dr. Radovanovic had never resected an SMG 4 AVM prior to Mr. Denman’s procedure.

[79] In light of the deficiencies in disclosure, together with a consideration of Mr. Denman’s personal circumstances, the trial judge concluded that, had Dr. Pereira and Dr. Radovanovic provided Mr. Denman with an adequate risk assessment, neither Mr. Denman nor a reasonable person in his circumstances would have proceeded with the combined third embolization and surgical resection. The trial judge’s failure to clearly set out her findings as to the level of risk that ought to have been disclosed with respect to the combined procedure is unfortunate. It is apparent, however, that she assessed it as being no less than an immediate 10 to 15 percent risk of significant morbidity or mortality, as testified by the appellants’ own expert. When contrasted with Dr. Pereira’s estimate of an about 1 percent per year risk of serious adverse outcome without treatment, the trial judge’s conclusion is adequately explained and available on the record. I see no basis to interfere.

(d) No error in finding all three appellants liable

[80] The appellants concede that, if this court confirms the trial judge’s finding that there was a breach of the duty of informed consent and causation is established, then Dr. Pereira, as the physician who carried out the embolization procedure that caused the injury, was properly found liable. However, they dispute liability on the part of Dr. ter Brugge and Dr. Radovanovic. In their submission, neither Dr. ter Brugge nor Dr. Radovanovic ought to have been found liable, as they did not bear the responsibility to obtain informed consent for the procedure that resulted in the injury.

[81] As I will explain, I do not agree that, in the circumstances of this case, the trial judge erred in concluding that Dr. ter Brugge and Dr. Radovanovic share liability with Dr. Pereira.

(i) Duty of disclosure not necessarily limited to physician carrying out procedure

[82] The appellants maintain that it is well established, as a matter of law, that only the physician carrying out the procedure is responsible for obtaining informed consent and that the trial judge erred in deciding otherwise.

[83] In support of this submission, the appellants refer to the text by Gerald B. Robertson & Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Thomson Reuters Canada, 2017), at p. 213, which states: “responsibility for ensuring that the patient is properly informed lies with the doctor who performs the procedure or treatment rather than with the referring doctor.” For example, say the authors, a family physician who refers a patient to a cardiac specialist would owe no duty to explain the risks of the operation.

[84] The appellants also rely on ss. 10(1) [3] and 29(1) [4] of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”). Section 10(1) provides that “[a] health practitioner who proposes a treatment” shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered without consent. Section 29(1) provides protection from liability for administering treatment without consent if the treatment is administered with a consent the health practitioner believes on reasonable grounds and in good faith to be sufficient.

[85] The appellants argue that these statements stand for the proposition that only the physician who actually administers treatment can be found liable for doing so without informed consent.

[86] With respect, I disagree. Neither of these references state that only the physician actually administering the treatment can be found liable. Nor am I aware of a principled basis for saying so.

[87] The notion that it is only the physician who performs a procedure that is susceptible to liability stems from the pre-Reibl era, when lack of consent was historically associated with the intentional tort of battery which, as explained in Reibl, “consist[s] of an unprivileged and unconsented to invasion of one’s bodily security”: at p. 890.

[88] Unlike with the tort of battery, claims in negligence do not necessarily require an unauthorized invasion of a patient’s body. As Laskin C.J.C. (as he then was) explained in Reibl, which established a distinction between negligence and battery, the concern in negligence is the adequacy of disclosure to the patient.

[89] The case of Ferguson v. Hamilton Civic Hospitals (1983), 144 D.L.R. (3d) 214 (Ont. S.C.), aff’d (1985), 50 O.R. (2d) 754 (C.A.), is at odds with the appellants’ submission that only a physician conducting a procedure has an obligation to provide the patient with adequate disclosure. In that case, Dr. Murray, a neurosurgeon and the patient’s attending physician, examined the patient and concluded that further investigations, including an angiogram, were necessary to determine the cause of the patient’s symptoms. As a result of the angiogram, the patient suffered a serious injury. Although Dr. Murray was the doctor who proposed the procedure, it was ultimately carried out by Dr. Isaac, a radiology resident. Krever J. acknowledged that:

[a]lthough there may be cases in which a doctor requesting the performance of a procedure may be entitled to leave the observation of the duty of informing to the performing doctor..., that cannot be so when the requesting doctor knows that the performing doctor does not have the qualifications to do so: at para. 62.

In that particular case, Krever J. found that Dr. Murray was under a duty to discuss the alternatives to the angiogram and their risks with his patient, even though he was not the doctor performing the procedure that caused harm. In that case, although both Dr. Murray and Dr. Isaac provided inadequate disclosure to the patient, there was no liability because the patient failed to prove causation.

[90] As Ferguson and the case at hand illustrate, modern medical treatment may involve a team of doctors working together. Section 13 of the HCCA recognizes the reality of team-based treatment. It provides that “[i]f a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved” propose the plan of treatment and obtain consent or a refusal of consent.

[91] In conclusion, as Ferguson illustrates, a physician not performing a procedure may, depending on the circumstances, have a duty of disclosure. Whether there is liability will depend on causation.

(ii) Liability of Dr. ter Brugge

[92] As I will explain, I am satisfied that the trial judge did not err in finding liability on the part of Dr. ter Brugge, who provided inadequate disclosure to Mr. Denman, which ultimately led to Mr. Denman proceeding with the plan of treatment for his AVM.

Duty of disclosure

[93] Dr. ter Brugge participated in the May 8, 2014, multidisciplinary AVM conference at TWH. The purpose of the conference was to provide a joint recommendation to Mr. Denman. The Amended Statement of Defence describes the conference and the team’s joint recommendation as follows:

On May 8, 2014, the multidisciplinary team at the AVM Clinic at the Toronto Western Hospital discussed Mr. Denman's case. Drs. ter Brugge, Schwartz, and Radovanovic and possibly other physicians from the multidisciplinary team were in attendance. The multidisciplinary team decided to recommend a series of embolization procedures, over a period of months, for Mr. Denman's arteriovenous malformation. After the embolization procedures were complete, if the arteriovenous malformation was still present, it would be removed by surgical resection. [Emphasis added.]

As previously stated, Dr. Pereira, who ended up performing the embolizations, was not in attendance at the conference, which occurred prior to his arrival at TWH.

[94] As noted by the trial judge, “[f]ollowing [the] May 8, 2014, multidisciplinary AVM conference … Dr. ter Brugge was tasked with conveying the necessary information about the risks and benefits of the available options to Mr. Denman so that he could make an informed decision.” On June 5, 2014, Dr. ter Brugge met with Mr. Denman and proposed the treatment to him.

[95] It is difficult to see how one can say that, in these circumstances, Dr. ter Brugge had no responsibility to provide Mr. Denman with adequate disclosure to enable him to make an informed decision. What was necessary to fulfil such an obligation is the issue to which I turn next.

Inadequacy of the disclosure provided by Dr. ter Brugge

[96] The trial judge found that “in order [for Mr. Denman] to make an informed decision, [he] would have to have been informed of the cumulative upfront risk or range of upfront risk associated with what was known to be a multi-step elective course of treatment” compared to the lifetime risk to which he would be subject without treatment.

[97] The appellants argue that, because the number of required embolizations could not be known with certainty at the outset, it was reasonable for Dr. ter Brugge to disclose only the risks attendant to the first embolization, which occurred without incident. In other words, it was unreasonable and an error of law for the trial judge to impose a duty to disclose the risks of multiple procedures in advance of any treatment and to impose liability on that basis. Again, I disagree.

[98] The trial judge found that Dr. ter Brugge’s evidence was problematic. In his evidence, Dr. ter Brugge testified that:

• he believed a single embolization would likely be curative;
• his standard practice would be to discuss the risks associated with each subsequent procedure only, if necessary, after the procedure had failed;
• he would not voluntarily advise his patient of the cumulative risk, or range of cumulative risks, associated with a multi-step course of medical intervention because he thought this would be misleading; and
• it was not his standard practice to provide his patient with the lifetime risk of spontaneous bleed should the AVM remain untreated as he was not a fan of giving patients that type of information.

[99] The trial judge explained at length why she rejected Dr. ter Brugge’s testimony that a single embolization would likely be curative of Mr. Denman’s condition. She also explained why she concluded that the appellants expected that Mr. Denman would have to undergo a series of embolizations, followed by a surgical resection, to effect a cure of his AVM. Dr. ter Brugge’s evidence was contrary to that of the other experts who all acknowledged that a single embolization would not be curative. Further, Dr. ter Brugge’s evidence on this point was contrary to the admission contained in the appellants’ Amended Statement of Defence to the effect that the treatment team, of which Dr. ter Brugge was a member, anticipated a series of embolization procedures over several months followed, if required, by a surgical resection of his AVM.

[100] Accordingly, the trial judge found that Dr. ter Brugge’s failure to disclose to Mr. Denman the nature of the multi-step course of elective medical intervention required was simply “not defensible”. Any reasonable patient in Mr. Denman’s circumstances would want to know what interventions would likely be required to effect a cure and the risks or range of risks associated with the expected course of treatment.

[101] The trial judge also explained that Dr. ter Brugge’s inadequate disclosure of risk was made worse by him directing Mr. Denman to a misleading website that understated the risk of adverse outcome for even a single embolization.

[102] The trial judge further explained that Dr. ter Brugge failed to provide Mr. Denman with an estimate of the lifetime risk or range of risks he would be subject to without treatment of his AVM. This information was necessary to enable Mr. Denman to weigh the relative or comparative risks and benefits between undergoing the plan of treatment and deferring treatment.

[103] The trial judge’s conclusion that Dr. ter Brugge did not adequately disclose the risks involved with the plan of treatment being proposed, or even with a single embolization treatment, is both well supported in the record and outlined in the reasons. In fact, Dr. Radovanovic, Dr. Pereira, the appellants’ litigation expert, Dr. Roy, as well as the respondents’ litigation expert, Dr. Findlay, all expressly or impliedly confirmed that Dr. ter Brugge’s disclosure to Mr. Denman was inadequate. For instance, Dr. Roy agreed that patients like Mr. Denman were entitled to know the range of cumulative risks for the treatments that would likely be required. And, Dr. Radovanovic – who was involved in the discussion at the May 2014 AVM conference with Dr. ter Brugge – gave similar testimony. He testified that he expected that Dr. ter Brugge would inform Mr. Denman that he would likely require a series of embolizations followed by a surgical resection of his AVM, together with the cumulative range of risks of this treatment plan.

[104] As explained earlier, the AVM team was recommending a plan of treatment and undergoing the first embolization only made sense in the context of that plan of treatment. The plan contemplated more than one embolization because it was known that a single embolization would likely not resolve Mr. Denman’s AVM nor, in fact, would it reduce the lifetime risk of spontaneous bleed Mr. Denman was subject to because of his AVM.

[105] If one were to accept Dr. ter Brugge’s approach of only informing Mr. Denman of the risk involved in the first embolization, the disclosure required for Mr. Denman to allow for informed consent would have to encompass both the risks and benefits of the proposed procedure: Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341, at para. 18; Huisman v. MacDonald, 2007 ONCA 391, 280 D.L.R. (4th) 1, at para. 44. Given that it was known that multiple embolizations and a surgical resection would likely be necessary to resolve Mr. Denman’s AVM, and that a single embolization was of no benefit, Dr. ter Brugge would have to have advised Mr. Denman that he was proposing that he undergo a procedure with no likely benefit but significant risk. Clearly, neither Mr. Denman nor a reasonable person in his position would agree to proceed with such a treatment.

[106] In summary, Dr. ter Brugge’s disclosure to Mr. Denman was inadequate. That, of course, is not the end of the matter. There remains the question of causation, to which I now turn.

Causation

[107] In my view, there is sufficient causation between Dr. ter Brugge’s inadequate disclosure and the injury suffered by Mr. Denman.

[108] I accept that Mr. Denman was, at each step, offered the choice to proceed or not to proceed with the immediate procedure being undertaken. I also accept that, at each of the three steps, he gave his consent to that procedure. This may well give rise to a defence to a claim in battery, but it is not sufficient to provide a defence to a claim in negligence.

[109] In assessing what would have happened if Dr. ter Brugge had provided Mr. Denman with adequate disclosure, it is important to remember that the first two embolizations did not reduce Mr. Denman’s risk of spontaneous bleed, and so there was no point in him undertaking any of the steps unless he was prepared to undergo all of the steps necessary to effect a cure.

[110] It was Mr. Denman’s wish to effect a cure of his AVM that motivated him to undergo the first embolization and to later agree to the following treatments. Dr. ter Brugge knew that Mr. Denman wished to effect a cure and that the benefit to Mr. Denman lay in completing the plan of treatment. When he consulted Dr. ter Brugge, the choice Mr. Denman ought to have been offered was either to undertake the recommended plan of treatment, which would resolve his condition, or to delay treatment. The risk involved with both of the options ought to have been adequately disclosed in order for Mr. Denman to give informed consent. Dr. ter Brugge did neither.

[111] As found by the trial judge, had Mr. Denman been given adequate disclosure by Dr. ter Brugge, neither he nor a reasonable person in his situation would have embarked upon the course of treatment. In other words, he would not even have agreed to the first treatment and therefore not suffered any injury.

[112] Because the first two procedures were carried out without injury, the chain of causation could arguably have been broken if, prior to undergoing the combined third embolization and surgical resection, Mr. Denman had been provided with correct information. As the trial judge noted, “[g]iven the inadequate information initially provided to Mr. Denman by Dr. ter Brugge … it was necessary for one or more of the [appellants] to correct these errors”.

[113] In order to break the chain of causation, both the reasonably anticipated risks of undergoing that third set of procedures and the risks of deferring treatment should have been disclosed. Had this been done, Mr. Denman would then have been in a position to give his informed consent. He would have known the risks involved in proceeding with the balance of the plan of treatment to effect a cure versus the risks of delaying further treatment. The injury he suffered, therefore, would have been incurred after the physicians obtained informed consent for the procedure that caused injury and Dr. ter Brugge’s negligence would, arguably, not have been causal.

[114] Unfortunately, Mr. Denman did not receive adequate disclosure along the way, including before the third combined procedure, as discussed below. Accordingly, the chain of causation was not broken.

[115] In conclusion, I see no error in the trial judge’s conclusion that Dr. ter Brugge shares liability for the inadequate disclosure to Mr. Denman.

(iii) Liability of Dr. Radovanovic

[116] The appellants also challenge the imposition of liability on Dr. Radovanovic on the basis that he was not the physician who provided the treatment that caused injury to Mr. Denman. I have already explained why I reject the proposition that only the physician who provided the treatment that resulted in the injury can be liable in negligence for failing to obtain informed consent.

[117] As previously outlined, Dr. Radovanovic and Dr. Pereira met with Mr. and Mrs. Denman on January 29, 2015. They proposed that Mr. Denman undergo a third embolization followed by surgical resection. As detailed above, each doctor gave Mr. Denman information about the risks associated with the combined procedure. Both failed to provide Mr. Denman with the information required to enable him to give his informed consent to undergo the proposed combined procedure. Just as with the information provided by Dr. ter Brugge, the information provided to Mr. Denman by Dr. Radovanovic and Dr. Pereira was not only lacking, it was misleading and inaccurate.

[118] As also explained earlier, the trial judge’s finding that, properly informed of the risks, neither Mr. Denman nor a reasonable person in his circumstances would have agreed to undergo the combined embolization and surgical resection was fully supported by the record.

[119] Therefore, but for the combined negligence of Dr. Radovanovic and Dr. Pereira, Mr. Denman would not have agreed to the combined procedure and the injury to Mr. Denman would not have occurred.

[120] In the circumstances, there is no basis for interfering with the trial judge’s finding that Dr. Radovanovic is equally liable.

EVIDENTIARY ISSUES

(1) No error in refusing to recognize Dr. Redekop as an expert witness

[121] At trial, the appellants sought to call Dr. Redekop, a vascular neurosurgeon and interventional neurologist, as an expert witness. The respondents challenged Dr. Redekop’s impartiality and, on the respondents’ motion, Dr. Redekop was cross-examined at length. Following the voir dire, the trial judge excluded Dr. Redekop from testifying as a result of bias: 2022 ONSC 4401.

[122] On appeal, the appellants argue that the trial judge made a legal error in failing to apply White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, choosing, instead, to ground her reasons in Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275, 34 C.C.L.T. (4th) 25, and to apply the factors listed in Wise as a “strict test”. They also submit that her reasons are deficient and that she made erroneous findings.

[123] As the appellants note, the standard of review of a trial judge’s ruling on the admission of expert evidence is well established: “Deference is owed to a trial judge’s decision on admitting expert evidence, unless the trial judge commits an error of principle, materially misapprehends the evidence, or reaches an unreasonable conclusion”: R v. Whatcott, 2023 ONCA 536, 168 O.R. (3d) 81, at para. 34.

[124] In my view, the threshold for interfering with the trial judge’s decision is not met. Nor am I satisfied that the trial judge’s reasons are insufficient or that she made any palpable and overriding errors.

[125] The trial judge understood and applied the correct legal test. Contrary to the appellants’ submission, the trial judge was well aware of her role when exercising her gate-keeping function as it concerns the testimony of expert witnesses. She expressly and repeatedly referred to White Burgess. She understood that, at the threshold stage, an expert will be prevented from testifying only if the expert is unable or unwilling to discharge the duty to provide a fair and non-partisan opinion.

[126] The trial judge also referred to other case law, including Wise. She appropriately considered the Wise decision as setting out a non-exhaustive list of factors that “may be considered when ascertaining bias or impartiality” of an expert witness.

[127] In her reasons, the trial judge explained that, based on the admissions made by Dr. Redekop during his cross-examination on qualification, eight of the factors listed in Wise applied and suggested that Dr. Redekop was biased and partial.

[128] The trial judge did not, as suggested by the appellants, limit her analysis to the application of the Wise factors. After providing an extensive summary of Dr. Redekop’s cross-examination, including Dr. Redekop’s admission that his practice was to provide standard of care opinions on AVMs for his colleagues but not for plaintiffs, she took into account factors listed in Wise relevant to an assessment of the legal test from White Burgess. Ultimately, she concluded that Dr. Redekop “was not impartial” because “[h]e was unable and unwilling to comply with his duty to the court”. In reaching this conclusion, she made no error of law.

[129] I also reject the appellants’ submission that the trial judge’s findings in support of her conclusion are unsupported by the evidence. It goes without saying that deference is owed to the trial judge’s factual findings. The trial judge’s finding that “[Dr. Redekop] does not testify for plaintiffs in medical malpractice matters involving standard of care” finds support in the record. Nor am I satisfied that any of the trial judge’s other findings made in support of her conclusion amount to palpable and overriding errors.

[130] As explained in White Burgess, at para. 50, whether an expert should be permitted to give evidence despite having an interest or a connection with the litigation “is a matter of fact and degree.” While another judge might have reached a different conclusion, I see no reason to interfere.

(2) No error in the treatment of Mrs. Denman’s testimony

[131] At trial, the appellants raised objections to parts of Mrs. Denman’s testimony of the basis that it was hearsay or inadmissible lay opinion evidence.

[132] On appeal, the appellants argue that the trial judge: a) never adjudicated on various challenges the appellants made to portions of Mrs. Denman’s testimony on the basis that it was hearsay; and b) erred in relying on Mrs. Denman’s testimony as to what she believes Mr. Denman would have chosen to do.

[133] As for the first argument, I disagree that the trial judge failed to grapple with the hearsay issue in assessing Mrs. Denman’s testimony. The trial judge reviewed the law relating to hearsay. She was clearly alert to the concern in this case that Mrs. Denman, who she found to be a credible witness, could only testify to her knowledge and, although she could testify as to what she was told by Mr. Denman, this would not constitute proof that those statements were true. As I noted earlier, Mr. Denman was not able to testify and, in those circumstances, the trial judge was required to do the best she could to do justice to the parties.

[134] As for the second argument, the respondents concede that one sentence in the trial judge’s 195-paragraph decision might suggest that she improperly relied on Mrs. Denman’s belief “that her husband would have chosen to continue with conservative/watchful management” in support of her finding that the subjective component of the causation test was satisfied.

[135] I agree that if the trial judge relied on that statement for proof of the fact that Mr. Denman would have chosen to continue conservative watchful management, this would constitute an improper use. That said, however, I am not satisfied that this is how the trial judge used the statement. The trial judge, who had instructed Mrs. Denman not to give evidence as to her belief, was alive to the problems with such evidence. In any event, there was ample evidence in support of the trial judge’s conclusion that, properly informed, Mr. Denman would not have proceeded with the treatment at that time. There was no need to rely on this statement in order to reach her conclusion. I would, therefore, not give effect to the appellants’ argument in this regard.

(3) No error in treatment of Dr. Findlay’s evidence

[136] The appellants submit that the trial judge failed to rule on defence objections to testimony from the respondents’ expert, Dr. Max Findlay. This failure, submit the appellants, was unfair since it denied them the right to know the case they had to meet. They suggest that, if defence objections had been sustained, the defence of their case “could well have been different”.

[137] The transcript reveals that, on March 17, 2022, the second day of trial, the trial judge was asked to make and did in fact make an in-trial ruling. She ruled that Dr. Findlay was to be qualified to provide expert evidence in neurology and deal with informed consent issues about the management and care of AVMs. She stated: “He is qualified as a neurosurgeon and is able to give opinion evidence on including informed consent.”

[138] As for other rulings or objections that may have been deferred, it is noteworthy that the appellants did not insist upon rulings prior to calling their case. This belies their submission that the deferral of any rulings was prejudicial to them.

COSTS APPEAL

[139] The appellants seek leave to appeal the trial judge’s costs order. They argue that the trial judge erred in awarding costs to the respondents “on an enhanced scale” in the amount of $3 million. They argue that the award was made in reliance on extraneous and irrelevant factors such as the costs that were awarded in an unrelated medical negligence trial featuring the same counsel as the appellants had at trial. They also submit that “enhanced costs” were not justified given that there was no reprehensible, scandalous, or outrageous conduct by the appellants.

[140] I would not grant leave to appeal the costs award. The trial judge’s award of costs is entitled to a high degree of deference. Nothing in her reasons suggests that she directed herself to irrelevant factors. Nor is the award unreasonable in the circumstances.

[141] The respondents had bettered their offer to settle by some $2 million and, in accordance with r. 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, were therefore presumptively entitled to substantial indemnity costs from the date of that offer. The amount awarded was less than would have been awarded applying the calculation that r. 49 envisions.

[142] Further, the trial judge’s reasons show that she thoroughly reviewed the factors to be considered in awarding costs, as outlined in r. 57.01 of the Rules, and made an appropriate award. The award is proportionate to the complexity of the proceeding and importance of the issues raised, the $8.5 million in damages, and the work required to achieve the trial result in this case.

CONCLUSION

[143] In conclusion, I would dismiss the appeal. I would award the respondents their costs of the appeal fixed in the agreed amount of $125,000 plus HST.

Released: April 16, 2024 “P.R.” “Paul Rouleau J.A.” “I agree. M.L. Benotto J.A.” “I agree. J. Copeland J.A.”

[1] For example, Laskin C.J.C. (as he then was) commented on the confusion the terminology causes in Reibl v. Hughes, [1980] 2 S.C.R. 880, at pp. 888-89: “The popularization of the term “informed consent” for what is, in essence, a duty of disclosure of certain risks of surgery or therapy appears to have had some influence in the retention of battery as a ground of liability, even in cases where there was express consent to such treatment and the surgeon or therapist did not go beyond that to which consent was given. It would be better to abandon the term when it tends to confuse battery and negligence.”

[2] The appellants also take issue with the trial judge allegedly relying on evidence from Mrs. Denman about what she believes her husband would have chosen if properly informed of the risks. I deal more fulsomely with the appellants’ concerns over Mrs. Denman’s evidence later on in the reasons.

[3] Section10(1) provides: “A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.”

[4] Section 29 (1) provides: “If a treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for administering the treatment without consent.”