ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-CV-282201PD2
DATE: 20121126

BETWEEN:

Sayada Mohsina and Muhammad Amin Plaintiffs – and – Dr. Melanie Ornstein, Dr. Robert Mackenzie, Dr. Rekha Pramod and Toronto East General Hospital Defendants

Lori Stoltz and Robert Plate, for the Plaintiffs

Sarit E. Batner and Lisa M. Filgiano, for the Defendant, Dr. Melanie Ornstein No one appearing for other Defendants (claims against them were dismissed on consent)

HEARD: Oct. 29 th – Nov. 2 nd , Nov. 6 th & Nov. 7 th , 2012

ALLEN J.

R E A S O N S F O R J U D G M E N T

THE PARTIES

[ 1 ] The plaintiff Sayada Mohsina (her actual name is Mohsina Sayada) underwent surgery on January 16, 2004 at Toronto East General Hospital. This action arises from Ms. Sayada’s allegation that Dr. Melanie Ornstein, a gynecologist and obstetrician, performed a procedure she did not consent to that rendered her sterile. The plaintiff Muhammad Amin is Ms. Sayada’s husband and brings a claim under subsection 61(2) (e) of the Family Law Act , R.S.O. 1990 c.F.3 for loss of guidance, care and companionship.

[ 2 ] Ms. Sayada was 40 years of age at the time of trial, with two children by her first husband, a daughter age 21 and a son age 20. Ms. Sayada was 31 years of age when she underwent the surgery. Ms. Sayada obtained a Bachelor of Arts degree in Bangladesh and worked as a travel consultant. Her first marriage ended and she immigrated to Los Angeles in 1996 leaving her two children with family members. She met Mr. Amin in Los Angeles and they married in 1999. Mr. Amin was a licensed pharmacist in his homeland Pakistan.

[ 3 ] Below I set out the facts of Ms. Sayada’s history of pregnancy only for the purpose of setting a context for the surgery at issue and not to raise a question about the desire of the couple to have children. There is no dispute that at the time of the surgery they desired to have children together.

[ 4 ] In addition to the births of her two children during her first marriage, Ms. Sayada had two pregnancies with Mr. Amin that ended in abortions. Ms. Sayada had an unplanned pregnancy almost immediately after the marriage. They decided Ms. Sayada should undergo an abortion due to their young ages and the fact they were new immigrants who had not yet established their lives to accommodate children.

[ 5 ] The couple moved to Toronto in January 2003 and lived until September 2003 in a one bedroom apartment with two other couples. They had left Los Angeles in the throes of the fallout from 9/11 due to antagonistic attitudes displayed toward them by neighbours. They were prohibited by border authorities from bringing their possessions into Canada, hence their living arrangements in Toronto. As is discussed below, the couple learned in July 2003 that Ms. Sayada was pregnant and that she had conceived in May or June. Because the pregnancy was unplanned and due to their living conditions, this was upsetting news. As it turned out, the fetus was found to have severe Downs’ Syndrome and a therapeutic abortion was performed.

[ 6 ] Dr. Ornstein graduated from University of Toronto medical school and was licensed by the College of Physicians and Surgeons in 1996. She completed a five-year surgical residency in general obstetrics and gynecology at the University of Toronto from 1996 to 2001. In her practice she performed both open and endoscopic surgery. In 2003/2004 Dr. Ornstein had about two operation room days per month and averaged two to six procedures per operation room day, the number depending on the nature of the procedure. In those years, Dr. Ornstein’s practice consisted of about 50% minimally invasive laparoscopic and hysteroscopic surgical procedures.

ISSUE

[ 7 ] In her pleadings, Ms. Sayada sought damages on the alternative grounds of negligence, battery and breach of contract for injuries allegedly sustained at various points in the surgery.

[ 8 ] Before trial the claims against the defendants Dr. Mackenzie, Dr. Pramod and the Toronto East General Hospital were dismissed on consent and the quantum of damages was settled. Ms. Sayada also narrowed her claim to negligence and battery in relation to only one aspect of the surgery, Dr. Ornstein’s application of the Filshie clips to Ms. Sayada’s left fallopian tube.

[ 9 ] At trial, Ms. Sayada’s counsel led evidence both in battery and negligence but in her closing argument, on the belief the evidence most favoured a finding of battery, she abandoned the theory of negligence.

[ 10 ] The sole issue to be determined therefore is whether Dr. Ornstein is liable in battery for the application of the Filshie clips to Ms. Sayada’s left fallopian tube.

THE EVIDENCE

Factual Background

[ 11 ] Ms. Sayada saw Dr. Z. Quayyum, her family doctor, for abdominal discomfort. An ultra sound done in April 2003 revealed cysts on both ovaries. A further ultra sound in May 2003 showed the right ovarian cyst had grown and was suspected to be an endometrioma.

[ 12 ] As noted above, Ms. Sayada learned on July 8, 2003 at an appointment with Dr. Quayyum that she was pregnant. Dr. Quayyum referred her to see Dr. Ornstein. It was at the first appointment with Dr. Ornstein on August 22, 2003 that Ms. Sayada and her husband learned the baby had Downs’ Syndrome. After an amniocentesis confirmed the severity of the condition the decision was made to terminate the pregnancy.

[ 13 ] On October 10, 2003, Ms. Sayada and her husband went to see Dr. Ornstein. Ms. Sayada was experiencing abdominal pain and spotting. Dr. Ornstein requested Ms. Sayada undergo another ultrasound.

[ 14 ] On December 18, 2003, Ms. Sayada and her husband attended a further appointment with Dr. Ornstein. Dr. Ornstein advised that between ultrasounds conducted in October 2003 and December 2003, the right ovarian cyst had increased in size. The increase in size of the right ovarian cyst was of concern to Dr. Ornstein. The latter ultrasound revealed the cyst on the right ovary to be an endometrioma, sometimes called a chocolate cyst. This is a form of complex ovarian cyst that is formed from endometrial tissue present outside the uterus in the ovary .

[ 15 ] Dr. Ornstein recommended minimally invasive laparoscopic surgery as a means to perform a cystectomy on the right ovary, or the removal the right cyst. Dr. Ornstein was not as concerned about the left ovarian cyst as the ultra sound revealed a less complex type that could be removed if necessary during surgery if there was time to do so. On December 18, Ms. Sayada signed a consent to surgery (“the Consent”).

The Consent Form

[ 16 ] Ms. Sayada and Mr. Amin conceded they did not have a complete memory of the details of the discussion with Dr. Ornstein preceding the signing of the Consent. Nor did Dr. Ornstein have specific recall of all the details of the appointment and her discussion about the surgery beyond what was in the content of the Consent and her progress notes of December 18, 2003. Ms. Sayada testified she did not recall whether the Consent was devoid of handwritten notations before she signed it and Mr. Amin was more adamant the Consent did not contain handwritten notations.

[ 17 ] The Consent Form has the following handwritten notations which I have italicized. Next to the typed words “Name of Operation, Test or Procedure” are the handwritten words:

“Laparoscopy, Right Ovarian Cystectomy, Peritoneal Washing +- Left ovarian cystectomy.”

[ 18 ] Next to the handwritten words “Dr. Ornstein” and the typed words “has informed me about this operation, test or procedure” are the handwritten words:

“RISKS – anaesthesia, infection, bleeding, damage to bowel/bladder/ureters/ovary, possible oopherectomy.”

[ 19 ] Dr. Ornstein testified that she would never have a patient sign a blank consent and insisted she made the notations before Ms. Sayada signed. She relied on her standard practice which she explained is in accord with the purpose of obtaining the patient’s consent ― ensuring that the patient is informed of the surgical procedure and risks before they sign. She also relied on her progress note of December 18, 2003 which notes the surgical procedures on the Consent and some of the risks of the surgery. The relevant portion of the progress note states:

Discussed large complex persistent
R ov. cyst
Risk – torsion, rupture,
Lower risk LMP tumor
Rec. cystectomy
OR Jan. 16 ’04
Laparoscopy, R ov. Cystectomy + − L ov. Cystectomy, peritoneal washings
Consent √
Paperwork √

[ 20 ] I am satisfied by Dr. Ornstein’s testimony and the progress note that she acted in accordance with her standard practice. I find it is more reasonable to accept Dr. Ornstein made the handwritten notations before Ms. Sayada signed. There is nothing in the evidence that provides a basis for finding Dr. Ornstein would have done otherwise. I believe the plaintiffs’ memories of the Consent may understandably not be reliable with the passage of the nine years since it was signed.

The Surgery

[ 21 ] Dr. Ornstein’s operative note describes her observations and the procedures she performed on January 16, 2004. There is no issue as to the types of surgical procedures that were performed.

[ 22 ] At the beginning of surgery, Dr. Ornstein observed Stage IV endometriosis. She noted a “frozen pelvis”. This refers to the existence of very thick adhesions with the bowel being stuck to the back of the uterus. The entire right ovary was stuck to the pelvic sidewall. To clear the way to remove the right ovarian cyst, Dr. Ornstein attempted to dissect the adhesions. In doing so, she encountered bleeding. She decided in her surgical judgment at this point because of the bleeding to convert the laparoscopy to a laparotomy. She requested Dr. Mackenzie, a senior general surgeon, prepare for surgery to address any bowel issues if necessary.

[ 23 ] Dr. Ornstein observed the right ovarian cyst to be an endometrioma and that the right ovary was unsalvageable. The right tube had been damaged in the attempt to free it from the pelvic sidewall which led to more bleeding.

[ 24 ] Two units of packed red blood cells were administered because of the blood loss. Dr. Ornstein states in her operative note that due to the extensive blood loss, she decided to remove herself from the operation room and speak to the husband. Her note indicates she informed Mr. Amin that a hysterectomy was an ultimate possibility if the bleeding could not be controlled.

[ 25 ] Dr. Ornstein undertook a measure to control the bleeding. She performed a right salpingo-oopherectomy, or an excision of the right fallopian tube and ovary. Dr. Ornstein performed further procedures to control the bleeding. She placed a figure eight stitch in the back of the uterus where it had been lacerated in an attempt to take down adhesions. There was also bleeding in the area of the left cornua. Dr. Ornstein oversewed the left cornua using a 2-0 chromic suture.

[ 26 ] Dr. Ornstein’s surgical judgment at this point in the surgery is at the heart of Ms. Sayada’s battery claim. Dr. Ornstein at p. 2 of the operative note states the following:

I was concerned however if I blocked off the left cornua that I would put her at risk of developing an ectopic pregnancy in the left tube and therefore two Filshie clips were placed at the ampullar section of the tube to prevent this in the future.

[ 27 ] Dr. Ornstein applied gel foam and did cauterization to stop the remaining oozing of blood and the abdomen was then closed.

ANALYSIS

Battery

[ 28 ] Ms. Sayada argues the evidence supports a claim in battery. It is her position that the application of the Filshie clips fell outside the scope of the Consent and as such that procedure constitutes a battery.

[ 29 ] Ms. Sayada relies on case law that has drawn a line of distinction as to when a case should be brought as a claim in negligence and when it should more appropriately be brought in battery. The starting point for the plaintiff’s position is the principle enunciated by the Supreme Court of Canada in Reibl v. Hughes and has been much repeated by later courts:

In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent [emphasis added].

[ Reibl v. Hughes , 1980 23 (SCC) , [1980] 2 S.C.R. 880 (S.C.C.) , at p.7 ].

[ 30 ] Ms. Sayada argues the scenario in the above quotation that is highlighted applies to her case. Dr. Ornstein argues that the application of the Filshie clips was allowed by the general language in paragraph 3 of the Consent and that she did not commit a battery by performing the procedure. Paragraph 3 states:

3. I consent to the Doctor carrying out this operation, test or procedure, performing any additional or alternative treatment or procedure which he or she decides is immediately necessary during the course of this operation, test or procedure.

[ 31 ] Reibl v. Hughes provided important guidance on when the subject matter of a medical malpractice claim is more properly actionable in negligence or battery. The Supreme Court held a claim in negligence is more suitable in circumstances where failure to obtain informed consent is alleged on the basis the patient was not advised of the material risks of the procedure. A claim in battery, on the other hand, should be restricted to circumstances where informed consent is given for a particular procedure and another procedure for which consent has not been given is performed. The Court held:

In situations where the allegation is that the attendant risks which should have been disclosed were not communicated to the patient and yet the surgery or other medical treatment carried out was that to which the plaintiff consented (there being no negligence basis of liability for the recommended surgery or treatment to deal with the patient’s consent), I do not understand how it can be said that the consent was vitiated by the failure of disclosure so as to make the surgery or other treatment an unprivileged, unconsented to and intentional invasion of the patient’s bodily integrity. I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.

[ Reibl v. Hughes , p. 7]

[ 32 ] Hence the issues of informed consent and negligence and the medical evidence adduced in relation to those issues are irrelevant to the theory of battery.

[ 33 ] It stands to reason that an unconsented to medical procedure can form the basis of a claim in battery from the perspective that liability in battery arises when a person intentionally causes harmful or offensive contact with another person [Allan M. Linden and Bruce Feldthusen, Canadian Tort Law , 9 th ed. (Ontario: LexisNexis Canada Inc, 2011), at p.42]. Battery is an intentional tort consisting in the unconsented to invasion of the individual’s bodily security, which in a medical context, is surgery or treatment performed that is different from that for which the consent was given.

[ 34 ] Underpinning the theory of battery in the medical context is the right of an individual to be free from unwanted interference with the integrity of their bodies by physicians, the freedom to make choices about their own medical treatment. [ Malette v. Shulman , infra ]. This right to security of the person is a fundamental protection granted under s. 7 of the Canadian Charter of Rights and Freedoms and extends to unwarranted state and judicial interference. [ A.C. v. Manitoba (Director of Child and Family Services , 2009 SCC 30 () , [2009] S.C.J. No. 30 (S.C.C), at paras. 217 – 220 ; and E. (Mrs.) v. Eve , infra ].

[ 35 ] Proof of battery does not require consideration of such concepts from the theory of negligence as foreseeability. While the defendant must be shown to have intentionally touched the plaintiff without consent, it need not be proved that the defendant intended the particular consequence of their act. The defendant is responsible for even the unforeseeable consequences of their act [ Bettel v. Yim (1978), 1978 1580 (ON SC) , 20 O.R. (2d) 617 (Ont. Co. Ct.), at p. 623; and Linden and Feldthusen, op. cit., p. 42]. Absent an emergency, a physician is legally responsible for the consequences of procedures performed without consent even when the physician has acted in what in their opinion is the best interest of the patient.

CONCLUSION

[ 68 ] It was some three years following Dr. Ornstein’s completion of her residency in obstetrical/gynecological surgery that she performed Ms. Sayada’s surgery and as such she was in the beginning stages of her practice in that specialty. It is in that context that Dr. Ornstein performed the surgery and made a decision that I find was not hers to make. What is critical here is that Dr. Ornstein came to the conclusion before she clipped the left tube that Ms. Sayada’s chance of becoming pregnant was seriously compromised. Though there was no emergency, Dr. Ornstein took a surgical step that I do not doubt she felt was in Ms. Sayada’s interest. The problem is that it was a procedure Ms. Sayada did not agree to.

[ 69 ] The Ontario Court of Appeal provides instructive guidance on the limits of a physician’s authority:

The doctor’s authority to make decisions for the patient is necessarily a limited authority. If he knows that the patient has refused to consent to the proposed procedure, he is not empowered to overrule the patient’s decision by substituting his decision for hers even though he, and most others, may think hers a foolish or unreasonable decision. … The doctor has no authority to intervene in the face of a patient’s declared wishes to the contrary. Should he none the less proceed, he would be liable in battery for tortiously invading the patient’s bodily integrity notwithstanding that what he did may be considered beneficial to the patient.

[ Malette v. Schulman , at p. 10]

[ 70 ] If Dr. Ornstein were to have consulted further with Ms. Sayada and advised her of the risks of not ligating her left tube, it would be Ms. Sayada’s right to refuse the procedure even if her refusal to undergo the procedure could result in a compromise to her health or life.

[ 71 ] For all the reasons set out above, I find Dr. Ornstein liable in battery.

COSTS

[ 88 ] I therefore award costs to the plaintiffs in the amount of $180,000 inclusive of disbursements and HST, payable within thirty days of this Judgment.

Allen J.

Released: November 26, 2012