ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-3256-00SR
DATE: 2012 07 06

BETWEEN:

SUSAN TIGLAO and KEITH FRASER

Raj Napal, for the Plaintiffs

Plaintiffs

• and -

DR. R. SLEIGHTHOLM and BRAMPTON COSMETIC SURGERY AND LASER CLINIC

Eli Mogil and Byron Shaw, for the Defendants

Defendants

HEARD: May 15, 16, 17, 18, 22, 23, 24, 25, 29, and 30, 2012

REASONS FOR JUDGMENT

SNOWIE J.

1On July 18, 2007, the plaintiff, Susan Tiglao, underwent cosmetic surgery – a breast augmentation, and a tummy tuck with liposuction. The doctor who performed the surgery was a plastic surgeon, Dr. R. Sleightholm. The surgery was performed at the Brampton Civic Cosmetic Surgery and Laser Clinic. Dr. Sleightholm is the director of the said clinic.

2The plaintiff, Susan Tiglao, and her plaintiff husband, Keith Fraser, were suing both Dr. Sleightholm and his clinic for negligence and lack of an informed consent. The plaintiffs alleged that the risks of these surgeries were never fully explained to them. Additionally, the plaintiffs are totally dissatisfied with the results of the plastic surgery. Their complaints are as follows:

(a) Ms. Tiglao’s large breast implants are too big for her diminutive frame;

(b) her breasts are highly visibly asymmetrical now;

(c) her nipples now face different directions;

(d) the weight of her implants causes Ms. Tiglao constant pain and discomfort;

(e) the incisions all around Ms. Tiglao’s areolas have left visible scars;

(f) Ms. Tiglao has lost all erotic sensitivity in her nipples which has negatively impacted the couple’s marital relations;

(g) as a result of the tummy tuck surgery, Ms. Tiglao has a very visible horizontal scar across the whole of her abdomen, above her actual bikini line (hip to hip) – Ms. Tiglao sought out this surgery to have a three inch vertical C-section scar surgically removed so that she would have no visible scar. Instead she came out of the surgery with a large scar, hip to hip, and one and a half inches of her original C-section scar still remaining.

3The plaintiffs proffered an expert witness, Dr. Elliot Heller, to whom the defendant took objection. Dr. Heller is a plastic and reconstruction surgeon from New York State. He has never studied, trained, practiced, or been certified in Ontario. Dr. Heller, in fact, has had no experience in Ontario at all, and unfortunately, no evidence was called by the plaintiffs’ solicitor that Dr. Heller was familiar with the Ontario Standard of Care in this type of case. As a result, this Court had no choice but to find that his testimony would be of no assistance.

4On a secondary note, Dr. Heller also admitted under cross-examination that he had been convicted of fraud with respect to overbilling in his medical practice. Credibility, reliability and weight were also issues.

5As stated in Sima v. Hui, [2008] A.J. No. 144 :

The Defendants argue that the letter should be given no weight on the ground that Dr. Deckert does not apparently have any experience in medical practice in Alberta or Canada, and that he or she is a neurologist/internist, not a cardiologist. They point out that the standard of care of a specialist must be assessed in the light of the conduct of other specialists in the same field, and according to the level of knowledge, competence and skill expected of professionals in Canada: ter Neuzen v. Korn , 1995 72 (SCC) , [1995] 3 S.C.R. 674, at para. 33.

The ter Neuzen case indicates the standard of care to be determined, not the qualifications of expert witnesses. It may be, in some cases, that physicians from other countries and/or in related specialties might be knowledgeable about the relevant standard of care. It may also be that aspects of the standard of care are common in different countries. But I agree with the Defendants that Dr. Deckert’s letter does not indicate that he or she possesses knowledge of the relevant standard of care. The letter refers only to practice in Germany, and not at all to the standard of care applicable in Canada.

It is my view that there are fatal flaws in the “expert evidence” provided by the Plaintiff, both in form and in substance. The letter is, at most, hearsay evidence. The qualifications of the expert are not detailed, and, to the extent that they are provided, suggest a lack of expertise in the relevant specialty. The basis for the opinion is ambiguous and, in parts, inconsistent with established facts of the case. The opinion does not, on its face, relate to the issues in this application, namely whether the Defendant doctors complied with the standard of care of cardiologists practicing in Canada. I conclude that the Plaintiff’s “expert evidence” is not sufficiently reliable or relevant to be given any weight. In the result, the Plaintiff is without any expert evidence to support his case.

6Without evidence that Dr. Heller was familiar with the Ontario Standard of Care and/or that the Standard of Care was common for Plastic Surgeons in Ontario and in New York State, Dr. Elliot Heller was not permitted to offer expert evidence in this proceeding on the issue of the standard of care. Unfortunately, the plaintiffs had, as a result, no evidence to place before this court at trial on the issue of “the standard of care”, and that cause of action was dismissed. The only remaining cause of action to be determined by this court was the “lack of informed consent”.

7The plaintiff is 46 years of age. She was born in the Philippines and has been in Canada approximately 17 years. The evidence from both she and her husband was that she has never assimilated into the English-speaking culture in Canada. She works as a factory production person. The majority of her work colleagues are also from the Philippines and they all speak Tagalog together. Her mother resides with the plaintiffs in their matrimonial home. Her mother does not speak English and all of their conversations are in Tagalog. Mr. Fraser (the husband) travels a great deal in his business and is away from home often, leaving Ms. Tiglao and her mother to speak only in Tagalog.

8Mr. Fraser testified that he cannot talk with his wife about what he called “intelligent things” because she does not understand English. He says he must use gestures and very simple language to communicate with his wife.

9The plaintiffs married in 2008, but began living together in 2005. The surgery took place on July 18, 2007.

10The plaintiff, Susan Tiglao, has very little education. She testified that she attended school in the Philippines until Grade 5 only. Her education was all in Tagalog. She took one English course at school but did not pass it. She cannot read English. She left school at age 11. She lived in the Provinces in the Philippines on a farm helping her family with the animals from age 11 to 21. At 21 years of age, she went to Singapore to work as a “helper”, a domestic, for two years. At age 23 she came to Canada. She again worked as a “helper” in Canada. In Canada, she worked for an Italian family for eight months. Most of her communication with that family was again through gestures as she shared no common language with her employers.

11In 1992, Ms. Tiglao married a Filipino gentleman, Mr. Tiglao. They spoke Tagalog at home. For the first year she remained at home. She then went to work in a factory making albums for two years. All her work colleagues were again Filipino and they spoke Tagalog at work. She then stayed home for a period of time. She then went to work at Maple Lodge Farm where they catch and kill chickens. All her work colleagues at Maple Lodge Farm are again Filipino and they speak Tagalog at work. She is still employed there. It is clear she has had little need to speak English.

12Ms. Tiglao testified that she has never taken an English course in Canada. Her examinations for discovery were conducted with the use of a Tagalog interpreter. She used the services of a Tagalog interpreter throughout the trial. Ms. Tiglao has no fluency in English at this time. I can only assume that her fluency and comprehension of English five years ago (March 2007) was almost nonexistent.

13Ms. Tiglao met her present husband, Mr. Fraser, in 2000. Mr. Fraser does not speak Tagalog. He is English speaking. They both testified that they communicate mainly through gestures or signs. Ms. Tiglao testified that she speaks “a little” English. Mr. Fraser testified that he must reduce his verbal communication in English with Ms. Tiglao to the most basic and simple of sentences, often accompanied by hand and facial gestures. They communicate in simple language. I accept their evidence.

14Susan Tiglao is a diminutive woman of Asian descent. She was approximately 92 - 94 pounds in 2007. She still is. She is only four feet 11 inches tall. Ms. Tiglao testified that it was always her dream to look like “those beautiful people”. She called it “to look Hollywood”. Ms. Tiglao always wanted some breast cleavage.

15Ms. Tiglao had a pregnancy many years ago and had a caesarian section delivery. As a result, she was left with a three inch vertical scar on her lower abdomen that she always felt was ugly. She is self-conscious about her body. Her small breasts had also succumbed to drooping. Ms. Tiglao wanted to have larger breasts with some cleavage and no abdominal scarring. Mr. Fraser testified that he thought Ms. Tiglao was beautiful the way she was, but she was “bothered” by her small, drooping breasts and her visible three inch abdominal scar.

16Mr. Fraser testified that he saw the defendant’s advertisement for cosmetic surgery in the Brampton Guardian newspaper and he called for a consultation for he and his wife.

17Mr. Fraser attended the first consultation on March 6, 2007, with Ms. Tiglao. The evidence is undisputed that Dr. Sleightholm was present for 20 minutes of this visit only – 5 minutes for measurements, the remaining 15 minutes for consultation. This first visit was primarily with Ms. Claudia Zorzi. Dr. Sleightholm testified that Ms. Zorzi is not a nurse. Ms. Zorzi “looks after the business”. She also interviews the patients and receives the patient histories – “basically that is it”, he testified.

18The evidence is undisputed that the plaintiff, Mr. Fraser, did not ever interact with a nurse from the clinic until after the surgery when Ms. Tiglao’s stitches came out.

19The evidence is undisputed that all the consultations and office visits were conducted in English, and that Mr. Fraser was present for all but one consultation - the one on July 3, 2007, with Ms. Heidi Malana, a registered nurse.

20The evidence of the plaintiffs and the evidence of Dr. Sleightholm is conflicting as to what was discussed on March 6, 2007, the first consultation date. Dr. Sleightholm testified that in 15 minutes he explained all the risks of the two surgeries and all the different methods of doing implants to the plaintiffs. He testified that he also explained about the size and location of the incision to remove Ms. Tiglao’s C-section scar. The doctor testified that he also explained, in the same 15 minutes - hematomas, seromas, skin necrosis, possible asymmetry of the breasts, malplacement of the implants, infection and incomplete C-section scar removal. Both of the plaintiffs adamantly deny that they were informed of any such risks by Dr. Sleightholm. In my opinion, Susan Tiglao would never have understood explanations of these medical, technical words, legal words and/or these medical terms, even if the doctor did tell her all of this information in the 15 minutes he spent with her and her husband (after he took her measurements). This 15 minute period was the only consult between Dr. Sleightholm and the plaintiffs prior to Ms. Tiglao’s pre-op appointment on the day of surgery (July 18, 2007).

21I am satisfied that Ms. Tiglao has no fluency in even basic English. This was totally evident over the course of this three week trial.

22As the legal principles governing informed consent are well settled, they can be stated as they were in Revell v. Heartwell , 2010 ONCA 353 , at paragraphs 42 and 43 , as follows:

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 18841 (ON CA) , 255 D.L.R. (4 th ) 397 (Ont. C.A.) at para. 63 , leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 335, [2005] 3 S.R.C. viii.

In Matuzich v. Lieberman , [2002] O.J. No. 2811 (Ont. S.C.J.) 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.

23The court continues at paragraph 49 as follows:

…(continues verbatim as in the original text)…