ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-CV-319861
DATE: 20120315

BETWEEN:

Zareena Bibi Husain Plaintiff - and - Dr. Lanval Joseph Daly Defendant

Osborne G. Barnwell for the Plaintiff
Eli Mogil and Daniel Wolski for the Defendant

HEARD: February 6, 7, 8 and 9, 2012

Justice Belobaba :

Reasons for judgment

1The plaintiff sues for wrongful hysterectomy. While performing a myomectomy to remove uterine fibroids, the defendant gynaecologist converted the procedure intra-operatively into a hysterectomy and removed the plaintiff’s uterus. The plaintiff alleges that he did this without her consent. The consequences for the plaintiff and her husband, who had been trying for years to have a child, were devastating.

2The defendant doctor says he advised the patient of this very risk, and even if he had failed to do so, a reasonable person in her position, properly advised, would have accepted this risk.

3For the reasons that follow, I find for the plaintiff and I award general damages of $75,000.

Overview

4Zareena Husain and her husband, Tim Mohamed, had been trying for years to have a baby. Even at age 46, she was still determined to do so and in 2004 scheduled an appointment with a fertility specialist to explore in vitro fertilization (“IVF”). However, she was experiencing severe pelvic pain and extensive menstrual bleeding and she first had to deal with these problems. She and her husband met with Dr. Daly, the defendant gynaecologist, and discussed the surgical and non-surgical options. The former involved a myomectomy procedure, the latter medication. Based on her history, an in-office physical examination and the ultrasound results, both doctor and patient reasonably believed that the pain and bleeding were being caused by the presence of uterine fibroids.

5The plaintiff was keen to proceed with a myomectomy to remove the fibroids, which would not only relieve the pain but also enhance her chances of conception. She had a successful myomectomy in 1994 at the hands of Dr. Daly and as a result had enjoyed almost ten years of pain-free living. She was clearly hoping that this second myomectomy would also relieve her of the pain and bleeding symptoms and prepare her for her meeting with the fertility specialist. The procedure was agreed to and scheduled for October 4, 2004.

6While performing the myomectomy. Dr. Daly discovered two things: one, there were no fibroids to remove; and two, the source of the plaintiff’s pain and bleeding was a non-fibroid uterine condition called adenomyosis that could only be permanently cured by removing the uterus. Acting on what he believed were the plaintiff’s instructions – to do whatever was necessary to relieve the severe pain and bleeding symptoms – he converted the myomectomy into a hysterectomy and removed the plaintiff’s uterus.

7Ms. Husain says that Dr. Daly did this without her consent. She says that she was never told about and would never have consented to the possibility or risk of a hysterectomy. Her primary and ongoing concern, she says, was always pregnancy, not the relief of her pain and bleeding symptoms. If the only way to stop the pain and bleeding was the removal of her uterus, she would rather have “lived with the pain”, explored other less extreme options and kept her reproductive capacity intact at least until the appointment with the fertility specialist. Ms. Husain alleges that Dr. Daly made an intra-operative decision to perform a non-urgent medical procedure that has had tragic consequences for her and her husband and that he did so without her permission.

8Dr. Daly says that the plaintiff understood and accepted the risk that a hysterectomy was a possibility. He points to his office notes and to a letter that he received from Ms. Husain that in his view communicated a change in her priorities. Pain relief became the top priority; getting pregnant was of secondary concern. Dr. Daly remembers discussing the two medical options with Ms. Husain and her husband (myomectomy or medication) and advising them that the myomectomy procedure carried a risk of hysterectomy not only for urgent life-saving reasons (if there was excessive bleeding) or other reasons of necessity (if the attempt to remove the fibroids destroyed the uterus) but also if this was the only way to relieve the pain and bleeding symptoms. Dr. Daly says that Ms. Husain understood and accepted this risk. Dr. Daly denies any lack of informed consent.

Issues

9Under the law of informed consent, the plaintiff has to prove two things on a balance of probabilities: (1) that she was not informed of the risk in question by the defendant doctor; and (2) that a reasonable person in her position, properly informed, would not have accepted this risk.¹

Analysis

(1) Disclosure of the risk

10The first part of the two-part informed consent test, as it applies to the facts herein, asks whether the plaintiff was advised of the possibility that a non-emergency hysterectomy might be performed if the myomectomy could not relieve the pain and bleeding. The burden, of course, is on the plaintiff to prove this non-disclosure on a balance of probabilities.

11I find that she has done so.

12Much of the trial was devoted to the parties’ competing interpretations of the plaintiff’s August 13 letter and the discussions at the August 19 and September 15 office meetings. Before coming to any factual conclusions on these points, I will first set out three preliminary findings to provide some context.

13One, I find that at both the August 19 and September 15 meetings, Dr. Daly advised Ms. Husain that the myomectomy procedure carried a small risk of an emergency hysterectomy. As between the evidence of the plaintiff and her husband on this point and the evidence of Dr. Daly, I accept Dr. Daly’s evidence. His August 19 notes indicate that “all implications” were discussed and his September 15 notes that all “risks” were discussed, including the “risk of infertility, organ damage, risk of hysterectomy and excessive bleeding.” There is no suggestion that these notes were fabricated after the fact. However, to be clear, I find that the “risk of hysterectomy” that was discussed was the risk of an emergency hysterectomy - if there was excessive bleeding or if the uterus could not be restructured. I will return to this point.

14Two, I find that Ms. Husain was already well aware of this particular risk. When Ms. Husain met with Dr. Daly in 2004, she knew that certain gynaecological procedures, such as a myomectomy, and even a D&C or hysteroscopy, carried a small risk of an emergency hysterectomy. In 1997, while Ms. Husain was working in Florida, Dr. Sidney Adler, a gynaecologist in Boca Raton, explained this risk in some detail to both Ms. Husain and her husband. I am also satisfied that Ms. Husain, a medical nurse and intrepid Internet researcher, would have learned about this risk in the course of Googling “myomectomy.”

15Three, I find that the letter that Ms. Husain sent Dr. Daly on August 13 required clarification. The letter seemed to suggest that becoming pregnant was no longer a priority for the plaintiff:

My main reason for seeing you [is] to have help ASAP with my painful and heavy periods and almost daily vaginal bleeding. This condition is affecting the quality of my life ... I would like your assistance in pursuing getting rid of the fibroids and csyt at the present time. The other stuff is concurrent but secondary [the fertility specialist].

16Dr. Daly interpreted the letter as a “paradigm change” of priorities - that pain relief was now paramount; pregnancy was of secondary concern. Ms. Husain says that all she wanted to do was to express her priorities in chronological order – first, get rid of the fibroids and the cyst that are causing the pain and bleeding, and then, see the fertility specialist. Obviously, these competing interpretations had to be clarified. That is why the August 19 meeting was important.

17I can now turn to the August 19 meeting. As already stated, I accept Dr. Daly’s evidence that in discussing the myomectomy procedure, he advised Ms. Husain and her husband of the risk of an emergency hysterectomy. I also accept Dr. Daly’s evidence, supported by his office notes, that at the August 19 meeting, he suggested two approaches: “either myomectomy and treat endometriosis ... or Zoladex [for] 3 mo., followed by IVF.” He further noted the following: “all implications discussed ... she wants myomectomy ... patient advised to discuss this with her husband and phone to let me know her decision.”

18At the September 15 meeting, Dr. Daly noted that “she is definite that she wants to have myomectomy … risks discussed including risk of infertility, organ damage, risk of hysterectomy, excessive bleeding.” Again, I find that the reference to “risk of hysterectomy” was a reference to the risk of an emergency hysterectomy – if there was excessive bleeding or if in removing the fibroids, the uterus could not be preserved. I will explain this finding in more detail below.

19After the October 4 procedure was completed, Dr. Daly dictated a two-page post-operative report. Here are the relevant excerpts:

This patient was brought in into hospital for treatment of severe [bleeding] and chronic pelvic pain and fibroids. The patient also wished to become pregnant again but her primary concern was relief of pelvic pain and although the arrangement was for an attempt at myomectomy, the patient consented to the removal of the uterus if myomectomy seemed likely to be ineffective in relieving the pain ...

[During the procedure]... it turned out to be extensive adenomyosis. No distinct fibroids could be identified with any certainty. It was felt that the patient had extensive adenomyosis and therefore myomectomy would not treat the chronic pelvic pain and we therefore decided on hysterectomy.

20I do not accept Dr. Daly’s statement in his post-operative report that “the patient consented to the removal of the uterus if myomectomy seemed likely to be ineffective in relieving the pain.” On the contrary, I find that Ms. Husain was not told about and did not accept or agree to the possibility that a non-emergency hysterectomy might have to be performed and her uterus might have to be removed to relieve her pain and bleeding symptoms.

21I have come to this conclusion for the following reasons:

i. Both patient and doctor reasonably believed that the problem was uterine fibroids. This belief was based in large part on the patient’s history, the in-office physical examination and the ultrasound results. This had been the problem in 1994 when Dr. Daly performed the first myomectomy. It was also the problem, as he saw it, in 2004. It is therefore understandable that Dr. Daly would have advised Ms. Husain that a myomectomy to remove fibroids carried the risk of an emergency conversion into a hysterectomy. But what would have prompted Dr. Daly to mention the possibility of a non-emergency hysterectomy? Given his reasonable belief that the problem was fibroidal, it is difficult to understand why Dr. Daly would have raised the possibility that the source of the pain and bleeding might be non-fibroidal and as such might require a non-emergency hysterectomy.

ii. Both sides agree that there was no discussion at either the August 19 or September 15 meetings about the possibility of discovering adenomyosis and that the word ‘adenomyosis’ was never mentioned. And yet Dr. Daly says he discussed the risk of a non-emergency hysterectomy if the cause of the pain was something other than fibroids. Again, I find this difficult to understand. How does one meaningfully discuss the possibility of a non-emergency hysterectomy to relieve the pain and bleeding without ever mentioning adenomyosis or another similar non-fibroidal condition, even as an example? I do not accept that the defendant somehow managed to explain this risk to his patient without providing even one example of why a non-emergency hysterectomy might be required. This doesn’t make sense.

iii. Nor do I accept Dr. Daly’s evidence that when he mentioned this possibility, that Ms. Husain, hearing about the risk that her uterus might have to be removed and she could never thereafter have a baby, simply sat there and “said nothing.” Ms. Husain was desperate to become pregnant. She was a trained nurse and an informed, even aggressive, medical consumer – researching fertility issues on the Internet and faxing letters to Dr. Daly. She was clearly not intimidated by physicians. She would not have sat mute, saying nothing. In my view, she would most likely have responded with some combination of the following: “What do you mean a hysterectomy to stop the pain and bleeding? I don’t want to lose my uterus just to stop the pain. I can live with the pain. I’m seeing the fertility specialist on November 9. I can’t risk losing my uterus just to stop the pain and bleeding before I know whether I’m a candidate for in vitro fertilization.”

I don’t really know what Ms. Husain would have said. But I am persuaded on the evidence before me that she would not have just sat there and said nothing.

iv. Dr. Daly says he could have stopped the procedure after discovering the adenomyosis and closed up the abdomen, but he kept going and performed the hysterectomy because Ms. Husain told him to do whatever was necessary to get rid of the pain. There was nothing in the letter of August 13 that directed Dr. Daly to do whatever was necessary, including removing the uterus, if this was the only way to relieve the pain and bleeding. There is nothing in Dr. Daly’s office notes about any such discussion even though Dr. Daly, by his own admission, was a detailed note-taker. He insisted in his evidence that Ms. Husain’s letter of August 13 reflected a “paradigm change” and a “major departure” from the priority of pregnancy. Yet other than the entry on August 19 that “pregnancy is of secondary importance” (a notation that seems to refer to the contents of the letter and not to what was actually discussed at the meeting) there is nothing in the office notes to suggest that this “paradigm shift” was ever discussed or to indicate that Ms. Husain agreed to the possibility of losing her reproductive capacity if this was the only way to relieve the pain and bleeding symptoms.

v. I accept the evidence of Ms. Husain and her husband that no such possibility was discussed at either the August 19 or September 15 meetings.

vi. I also accept Ms. Husain’s evidence that at the September 15 meeting she agreed to the myomectomy because it would also help with fertility and Dr. Daly concurred, noting that medication would take several months and that she would see the fertility specialist much faster if they did the myomectomy.

vii. I accept Ms. Husain’s evidence that although she wanted relief for the bleeding and pain, she did not agree to the possibility that it could be at the expense of her uterus and her ability to become pregnant. I accept her evidence that she could have “lived with the pain” – at least until her meeting with the IVF specialist.

22I have no reason to doubt that Dr. Daly’s intra-operative decision to convert the myomectomy into a hysterectomy was, at least from his perspective, in the patient’s best interests. However, he did not have the patient’s consent to do so. Ms. Husain was not told about, nor had she agreed to, the possibility that the myomectomy might be converted into a non-emergency hysterectomy simply to relieve her of the pain and bleeding symptoms.

23I find that the plaintiff has proven on a balance of probabilities that she was never told that the relief of her pain and bleeding might possibly result in a non-emergency hysterectomy and the loss of her uterus and her ability to bear children. The first part of the informed consent test has therefore been satisfied.

(2) Causation

24The second part of the informed consent test is “whether a reasonable person in the circumstances of the plaintiff would have consented to the proposed treatment if all the risks had been disclosed.”⁴ This is a “modified objective test” that combines objective and subjective factors and requires that the court consider what the reasonable person in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any “particular concerns” of the patient and any “special considerations affecting the particular patient” in determining whether the patient would have refused treatment if given all the information about the possible risks.

25The reasonable person who sets the standard for the modified objective test must be taken to possess the patient’s reasonable beliefs, fears, desires and expectations. The modified objective test serves to eliminate from consideration the honestly held but idiosyncratic and unreasonable or irrational beliefs of patients. And, here again, the burden is on the plaintiff to prove the second-part of the informed consent test on a balance of probabilities.

26I begin this part of the analysis by assessing the reasonableness of the plaintiff’s beliefs, fears, desires and expectations as they relate to the matters herein.

27The plaintiff’s desire to have a baby, even at age 46, was not unreasonable - statistically unlikely yes, but not impossible and certainly not unreasonable.

28The plaintiff’s “life-long dream” to have her own baby is also not seriously impugned.

29I have accepted Ms. Husain’s evidence that she would have “lived with the pain” if it meant there was a possibility of becoming pregnant using artificial reproduction technology.

30Dr. Herer’s evidence that Zoladex “would have precluded pregnancy” and that certain drugs “have a variable success rate in terms of pain and bleeding relief” only goes so far.

31Nor am I persuaded by the defendant’s submission that Ms. Husain had such a proclivity to surgical treatment or such a high risk appetite that the reasonable person with these characteristics would readily have accepted the risk in question.

32The fact that Ms. Husain agreed to the 1994 myomectomy with Dr. Daly without any risk discussion or that she agreed to a much less invasive procedure in 1997 in Florida that also carried a risk of a hysterectomy does not mean that Ms. Husain had a “high risk appetite.”

33In sum, I am satisfied on a balance of probabilities that a reasonable woman in the plaintiff’s position, who was desperate to become pregnant and had an IVF appointment less than a month away, would not have agreed to the possibility of a non-emergency hysterectomy simply to relieve the symptoms of pain and bleeding.

34This reasonable woman would probably have directed Dr. Daly to proceed with the myomectomy (because the most likely diagnosis was fibroids), but to do so on the condition that if something else was discovered and there was no urgent or life-saving need to perform a hysterectomy, that no such procedure be performed.

35I therefore find that the plaintiff has satisfied the second part of the informed consent test on a balance of probabilities.

36By way of a final observation, I refer to a British Columbia decision that provides some cautionary advice to doctors that find themselves in the defendant’s position.

37The plaintiff has proven both parts of the informed consent test on a balance of probabilities. Liability has been established.

Damages

38Mr. Barnwell, counsel for the plaintiff, asks for both general and special damages (i.e. loss of income and certain foreseeable out-of-pocket expenses). I will first deal with the claim for general damages.

(1) General damages

39It is “an invidious task” for any judge to quantify the value to a woman of the loss of her reproductive capacity, especially if the woman was desperate to have children.

40How does one measure these losses in monetary terms? Difficult though it is, the attempt must be made.

41I begin with the proposition that the calculation of an appropriate general damages award must recognize that, in some circumstances and for some plaintiffs, the loss of a uterus can be “catastrophic.”

42Almost forty years ago, in a decision that is rarely cited, the Court of Appeal established “a benchmark of sorts” for the quantification of damages for the loss of reproductive capacity.

43The award of $25,000 in 1973, adjusted for inflation, is equivalent to about $114,000 in 2004 dollars.

44If the general damages award in 2004 dollars for a 26 year-old woman desperate to have her own baby can be $120,000, what should be the damages award for the 46 year-old woman who was just as desperate to become pregnant?

45In Bernard v. D’Anjou, Justice Chadwick dismissed the plaintiff’s action for a negligent hysterectomy that damaged her ureter.

46Here, Ms. Husain has established significant and foreseeable injury, described in detail by her and her husband.

47A patient’s right to make decisions about his or her own bodily integrity is paramount.

48If general damages of $100,000 or more have been awarded to younger women who were desperate to have children and wrongfully lost their reproductive capacity, and some $56,000 would have been awarded to a woman in her mid-50’s who no longer wanted children but for whom the same loss resulted in a significant and foreseeable depression, then a damages amount that falls somewhere in between would be appropriate in the case of a 46 year-old woman who wrongfully lost her reproductive capacity and spiralled into a significant and foreseeable depression.

49I therefore conclude that a fair and reasonable general damages award for the plaintiff herein is at the upper end of the range suggested by her legal counsel. I award $75,000 in general damages.

(2) Special Damages

50Special damages have not been proven and none are awarded.

51The claim for five months of lost income fails in two respects.

52The claim for various out-of-pocket expenses (for vitamin supplements, massages, acupuncture, fitness equipment, and orthotics) is supported by invoices but all of the invoices are dated 2007 to 2009.

53The brief note from Ms. Husain’s brother, Ray, advising that he and his girl-friend have received some $20,000 over the years from the plaintiff and her husband as payment for the birth and possible adoption of Ray’s girl-friend’s baby is insufficient.

54In sum, the claim for special damages is dismissed.

Disposition

55I find for the plaintiff.

56I award $75,000 in general damages.

57If costs cannot be resolved, I will be pleased to receive brief costs submissions within 14 days from the plaintiff and within 10 days thereafter from the defendant.

58My thanks to counsel for their assistance and co-operation.

Belobaba J.