COURT FILE NO: CV-04-276022CM3
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Samir Tomeh, Lamis Mraad Tomeh, Mary Tomeh, minor, Marla Tomeh, minor, Marell Tomeh, minor by their Litigation Guardian, Samir Tomeh
Plaintiffs
- and -
Dr. Henry K. Cheah
Defendant
Hugh Pattison,
for the Plaintiffs
Cynthia B. Kuehl & Meredith E. Jones,
for the Defendant
HEARD: September 16-20, 23, 2013
REASONS FOR DECISION
W. MATHESON J.
[1] This is a malpractice action arising from surgery conducted on the plaintiff Samir Tomeh by the defendant on September 23, 2003. Mr. Tomeh alleges negligence (including lack of informed consent) and battery. His wife, the plaintiff Lamis Mraad Tomeh, seeks damages under the Family Law Act, R.S.O. 1990, c. F-3. The action has been dismissed on consent in regard to the remaining plaintiffs, who are Mr. and Mrs. Tomeh’s children, all of whom are now adults.
[2] Although the allegations of negligence were not abandoned, at trial plaintiffs’ counsel focused mainly on consent and battery.
[3] This case relates to surgery on Mr. Tomeh’s foot for what was believed to be a ganglion cyst but turned out to be a nerve tumour. A ganglion cyst (also simply called a ganglion) is a benign soft tissue tumour that sometimes develops, for example, near a joint. Ganglion cysts are not unusual, and not serious. In contrast, nerve tumours are relatively rare and surgical removal has serious risks. While they are also benign soft tissue tumours, they are tumours growing from abnormal nerve tissue. They may grow within the nerve. Those tumours are called neuromas. They may grow in the nerve sheath. Those tumours are called schwannomas. Either way, if a nerve tumour is surgically removed there are significant risks because, of necessity, the nerve must be cut. There will be nerve damage; the only question is how much. As it turned out for Mr. Tomeh, he had a schwannoma in his foot.
Plaintiffs’ background
[4] Mr. Tomeh was born in 1959 and came to Canada from Syria as a refugee in about 1988. His wife also came to Canada from Syria, at the time of their marriage in 1989. They have three children.
[5] Mr. Tomeh has worked in retail menswear for more than twenty years. He is currently employed as a salesperson at Harry Rosen. His compensation has been based on either 100% commission (as it is now) or a combination of commission and a base salary.
[6] Mr. Tomeh’s job requires that he spend his workday standing. Except during breaks and at lunch, salespeople in retail menswear must stand. Mobility is also important. To some degree, which salesperson serves a customer and earns the commission depends on which salesperson gets to the customer first.
[7] Prior to the surgery at issue in this case, Mr. Tomeh also had a full family life, spending time with his wife and children, and playing soccer and other activities.
Events giving rise to surgery
[8] Mr. Tomeh developed a lump near his right ankle. He had the lump for about six years prior to seeking medical advice about it in 2003. It had started to be painful about a year before. There was pain when it was touched and the pain was growing. As of 2003, Mr. Tomeh had adapted to the lump by being careful to avoid contact on that part of his foot. He could still do all his normal activities, even playing soccer. When there was no contact, the lump did not interfere with his day-to-day life. However, every now and then, when there was contact, the pain was severe and could last two or three minutes or sometimes ten to fifteen minutes depending how it was touched.
[9] In early 2003, Mr. Tomeh went to see his family doctor, Dr. Abdelshaheed, about the lump. Dr. Abdelshaheed examined Mr. Tomeh’s foot and told him that there was liquid at that location that could be removed with a syringe. He ordered an ultrasound and referred his patient to Dr. Cheah, an orthopedic surgeon.
[10] Dr. Abdelshaheed’s referral form asked Dr. Cheah to assess Mr. Tomeh, “a 43 [year old] man with a ganglion.” Dr. Abdelshaheed attached the ultrasound report, in which in the radiologist had concluded that Mr. Tomeh had a benign lesion that most likely was an atypical looking ganglion. An orthopedic surgeon is the most likely physician to see a patient with a suspected ganglion.
[11] Dr. Cheah obtained his Fellowship in orthopedic surgery in 1998. He then completed two one-year clinical fellowships at Mount Sinai, the first in the Musculoskeletal Oncology Unit, and the second in the Adult Hip & Knee Reconstruction Service. He began in independent practice after those fellowships had been completed in June 2000. He now specializes in hip and knee replacements.
[12] In his five years of fellowship training, Dr. Cheah encountered ganglions from time to time. However, there was very little training in schwannomas, which are uncommon. He did not see any in those first five years. In his clinical fellowship in the Oncology Unit, he primarily saw major malignant tumours; however, he did encounter two or three nerve tumours during the year. He testified that most orthopedic surgeons like to avoid nerves and vessels.
[13] Altogether Dr. Cheah’s clinical fellowships included only two supervised surgeries involving nerve tumours, in which Dr. Cheah did the majority of the surgery trading off with the supervising physician. The next time he encountered a nerve tumour was during his surgery on Mr. Tomeh. Nor does Dr. Cheah do this type of surgery today.
Assessment by Dr. Cheah
[14] Mr. Tomeh saw Dr. Cheah in his office on April 23, 2003. Dr. Cheah introduced himself and performed a short physical examination of Mr. Tomeh’s foot. Mr. Tomeh told Dr. Cheah about the pain and numbness he had been experiencing.
[15] Dr. Cheah has no recollection of Mr. Tomeh, this appointment, the subsequent surgery or follow-up. He testified based on his medical records regarding Mr. Tomeh and his usual practice. On these bases, Dr. Cheah testified that he would have read the referral letter and ultrasound reports before seeing Mr. Tomeh. Dr. Cheah would then assess the patient, including a history and physical, and offer treatment options. The medical records confirm these steps although they suggest a very brief history and do not indicate that Dr. Cheah considered any diagnosis other than that offered by the family doctor.
[16] In addition to his own assessment, Dr. Cheah relied on the ultrasound report provided to him by the family doctor. He did so even though it contained some wording that he did not understand, some inconsistencies, and at least one obvious error (placing the lump on the wrong side of the ankle). Dr. Cheah did not contact the radiologist for any clarification.
[17] Dr. Cheah concluded that the lump was a ganglion cyst. That was his working diagnosis. He was confident in his diagnosis and therefore did not order any additional testing, such as a MRI or CT scan. He did not express any doubt about his diagnosis to Mr. Tomeh, or discuss the risks of other possible conditions, because he was not in doubt about his diagnosis.
[18] Dr. Cheah discussed two types of treatment with Mr. Tomeh: he could have a procedure called an aspiration to remove the liquid from the lump using a syringe, or he could have surgery. I accept Mr. Tomeh’s evidence that Dr. Cheah said that if he had the syringe the lump could come back, but with the surgery it would never come back. Dr. Cheah also testified that Mr. Tomeh had a third option. He could do nothing. Mr. Tomeh agreed in his testimony that he had the option of doing nothing. Mr. Tomeh and Dr. Cheah both acknowledged in their testimony that it was Mr. Tomeh’s decision whether to proceed with aspiration or surgery, or do nothing.
[19] Mr. Tomeh asked Dr. Cheah how long he would be off work if he had the surgery, saying that he could not afford to lose time at work. Dr. Cheah told him that his recovery would be quick; he would only be off for a few days. He would not need someone to take him home from the hospital. He would be able to walk home. Dr. Cheah told Mr. Tomeh that the surgery only took twenty to thirty minutes. Indeed, Dr. Cheah testified that if the surgery had been the removal of a ganglion, as he thought, it would have only taken him five minutes to remove it. Unfortunately, it did not turn out to be a ganglion.
[20] Dr. Cheah testified that for ganglion surgery it was his usual practice to explain the general risks of any surgery, including the risks of general anesthetic, infection, blood loss, and nerve or vessel injury. Mr. Tomeh does not recall these matters being discussed with him. He agreed that whether or not they had been discussed with him, he would have understood that in order to have surgery he would have to go to sleep, the area would be cut open, he would get staples or stitches, and there was a risk of infection and bleeding. Mr. Tomeh disagreed with the suggestion that Dr. Cheah told him about a risk of injury to a nerve. Nor was this something he would have otherwise understood to be a risk.
[21] On the subject of what risks were discussed in this visit, I prefer the evidence of Mr. Tomeh. This was an unusual event in his life. While he may not recall a discussion of risks that he would have expected, he would recall a discussion about the risk of nerve damage. I accept his evidence that his foot, and his ability to return to work quickly, were critical to him. I found Mr. Tomeh a credible witness, who fairly accepted that on some points he did not have perfect recall. But on matters of importance to him he was consistent and focused on the topics that would be of concern to someone in his position. In contrast, Dr. Cheah appeared prepared to elaborate on the facts outside his notes in his favour notwithstanding his complete lack of recall of this patient. Where they disagreed, and Dr. Cheah’s medical records did not confirm his evidence, I prefer the evidence of Mr. Tomeh.
[22] Dr. Cheah characterized the risk of nerve damage as a risk due to lack of surgical skill, and nothing about his evidence suggested to me that he believed he had any such lack of skill.
[23] Mr. Tomeh was not told that the surgery might involve cutting a nerve, and if he had been, he testified that he would not have had the surgery. He would have seen another doctor and obtained another opinion. As he said in his testimony, his living was in his foot. He was always standing. I accept his evidence that he would have declined the surgery at that time.
[24] Mr. Tomeh testified that he did consent to the surgery that had been described to him by Dr. Cheah − a short, easy surgery to remove a bag of liquid (also called a lump or bump) in his right foot, from which he could walk home. The lump would not come back and he would be back to work in a few days.
[25] Mr. Tomeh testified that his interaction with Dr. Cheah was very short, only a few minutes. Dr. Cheah testified that his regular appointments were booked for 15 minutes and while they could be shorter, he did not think that the appointment would be only a few minutes based upon his usual practice. Even 15 minutes is short from the standpoint of a patient seeing a doctor for the first time, particularly when considering all the steps involved. However, what matters here is what was said and done at the visit, not how long it took. Most importantly, Dr. Cheah’s diagnosis was a ganglion cyst, and he did not discuss other possibilities or their particular risks with Mr. Tomeh, nor did he discuss nerve damage.
[26] Dr. Cheah does not suggest that he discussed nerve tumours with Mr. Tomeh, or the risks specific to that surgery. It was not his working diagnosis. No other possibilities were discussed. He did not advise that the risk of nerve injury was 100%, as is the case for the removal of a nerve tumour. Nor did Dr. Cheah say that there would be any permanent damage. If he had, Mr. Tomeh testified that he would have stayed away.
[27] After Mr. Tomeh saw Dr. Cheah, the secretary in Dr. Cheah’s office gave him a piece of paper to sign. She said he had to sign it or there would be no surgery. Mr. Tomeh did so without reading the document.
[28] The document was a form entitled “Consent for Surgery with Dr. Henry Cheah”. Dr. Cheah testified that it was his in-office booking form, which included a consent. Dr. Cheah completed the form before it was given to Mr. Tomeh to sign. He indicated that the surgery was elective surgery. He also noted one hour as the length of the booking, but explained in his testimony that one hour was the minimum booking time, not an estimate of the time this surgery would take. The form included a statement that the anticipated nature and effect of the treatment had been explained to the patient, who understood the possible complications and was willing to accept the risks.
[29] On the form, under the heading, “General Nature of the Treatment” Dr. Cheah wrote in, by hand, “incision g soft tissue tumour right ankle”. Both Dr. Cheah and Mr. Tomeh testified that Dr. Cheah did not use the word “tumour” in his discussion with Mr. Tomeh. Dr. Cheah testified that he did not use the phrase soft tissue tumour because patients found it a scary word. He said he would have used ganglion and may have said lump or bump or fluid-filled bump.
[30] Dr. Cheah gave different explanations for why he used the description “incision g soft tissue tumour right ankle”. He testified that he began to write “ganglion” but scratched it out because that was not the correct way to book the case for the hospital. For booking purposes, he had to write “soft tissue tumour” to get the right equipment and was helping his assistant in making the booking. He also said he did not write ganglion because it was a provisional diagnosis, and one is never 100% certain. I do not accept this evidence. It conflicts with his evidence that he was confident in his diagnosis and therefore did not discuss other possibilities with his patient. Dr. Cheah also suggested that this description of the treatment was used to assist his patient in understanding what was being proposed. I do not accept this evidence. Having never used that terminology in his discussion with Mr. Tomeh, it simply makes no sense to suggest that the phrase would help Mr. Tomeh understand the surgery. Dr. Cheah also observed that a ganglion is one type of soft tissue tumour. It is, but the use of the more general term does not have the effect of expanding Mr. Tomeh’s consent to other conditions and related treatments that were not discussed with him.
[31] While it would obviously have been preferable if Mr. Tomeh had read the document before signing it, based upon Dr. Cheah’s evidence I find that even if Mr. Tomeh had read it and asked questions about it, Dr. Cheah would not have given Mr. Tomeh any new or different information about his diagnosis, treatment options or the risks of the particular surgery. Based upon Dr. Cheah’s own evidence, he would not have had a discussion with Mr. Tomeh about peripheral nerve surgery or its attendant risks.
[32] Dr. Cheah also testified that he instructed his staff to have him speak to any patients who appeared confused or unclear about what they were signing. This practice does not displace Mr. Tomeh’s specific evidence that Dr. Cheah’s secretary told him he had to sign the document and he therefore did so.
[33] Mr. Tomeh saw his family doctor shortly before the surgery, and discussed the surgery with him. He wanted his opinion. He told Dr. Abdelshaheed about Dr. Cheah’s opinion that surgery meant the lump would go away forever. Dr. Abdelshaheed said it was easy surgery and that it was Mr. Tomeh’s decision whether or not to proceed with it. Again, this was based upon the diagnosis of ganglion cyst.
Surgery
[34] Mr. Tomeh went to the Trillium Health Centre in Mississauga for day surgery on September 23, 2003. Mrs. Tomeh went with him.
[35] Mr. Tomeh had some tests and was given another document to sign, entitled “Consent to Treatment”. Dr. Cheah had also completed that form, again describing the procedure as “excision soft tissue tumour right ankle”. The form included an acknowledgement that the patient had discussed the procedure and its risks and benefits with Dr. Cheah. It also included a statement that if any other conditions or problems were discovered, the patient consented to the doctor performing “related or ancillary” procedures that were “reasonably necessary.” Again, Mr. Tomeh signed the form without reading it. Again, I find that reading the form and a further discussion with Dr. Cheah would not have given Mr. Tomeh new or different information about his diagnosis, treatment options or the risks of the surgery.
[36] Dr. Cheah came to see Mr. Tomeh before the surgery, although Mr. Tomeh did not immediately recognize him. Dr. Cheah came to fulfill a procedure called “sign your side” that is intended to guard against “wrong side” surgery and confirm that the patient knows where the operation is taking place. Dr. Cheah marked the area and left. Mr. Tomeh proceeded to surgery.
[37] As soon as Dr. Cheah opened up the area in surgery, he found that the lump was not a ganglion cyst. It was a nerve tumour. He described it in his surgical notes as a neuroma, and the pathology report later revealed that it was a schwannoma. Dr. Cheah testified that it was quite large and had been there a long time.
[38] Dr. Cheah testified that he was surprised to find a neuroma, but he decided to excise it anyway. Most importantly for this case, he testified that he had Mr. Tomeh’s consent because a neuroma was in essence a soft tissue tumour, as Dr. Cheah had written on the two consent forms.
[39] Dr. Cheah did not attempt to justify his decision based upon the additional words in the hospital consent form stating that the doctor could perform “related or ancillary” procedures that were “reasonably necessary.” He did not opine that it met those requirements. I agree. The new operation was not justified under that clause.
[40] Dr. Cheah also testified that based on his training and usual practice he thought a second surgery could be made more complicated by scarring and infection. This was advanced as another reason he proceeded with the surgery. I do not accept this evidence. This rationale was not in his medical records and his limited past experience in peripheral nerve surgery does not justify the suggestion of a usual practice.
[41] Dr. Cheah proceeded with the removal of a nerve tumour, a different and much more complicated procedure which he had never discussed with his patient. Dr. Cheah knew at the time that damage could arise from removing a nerve tumour. He knew that if someone like Mr. Tomeh had an operation to remove a nerve tumour, there could be significant and long lasting damage to the bottom of his foot, numbness and pain.
[42] Whether a neuroma or a schwannoma, the removal of a nerve tumour has significantly different risks. While the removal of a ganglion is a simple operation, and would not cause a nerve injury unless something went awry, the removal of a nerve tumour is a more complex procedure that of necessity causes nerve damage. The nerve must be cut to remove the tumour, which is growing in it. As the defence expert Dr. Waddell testified, the chance of nerve damage is 100%.
[43] Mr. Tomeh was not able to walk home and go back to work in a few days. He could not put any weight on his foot without severe pain. He was given painkillers. Mrs. Tomeh spent considerable time and effort assisting him over a period of months, not days, before he could walk and manage on his own. Mrs. Tomeh, whom I found a straightforward and fair witness, confirmed his significant pain and impairment from the date of surgery to the present.
[44] After the surgery, Mr. Tomeh developed a wound infection. By October 22, the wound was healing well but the nurse reported that Mr. Tomeh was having severe pain – 10 out of 10. When Dr. Cheah saw Mr. Tomeh, he too observed that the wound infection was settling, but Mr. Tomeh was still in a lot of pain. On October 24, 2003 Dr. Cheah signed a medical certificate that Mr. Tomeh would unable to return to work until December 1, 2003.
[45] At a visit on November 5, 2003, Dr. Cheah noted that the wound had settled down but Mr. Tomeh had some hypersensitivity of the nerve. He also had weakness of the “intrinsics of his foot” which was “due to the nerve sacrifice that had to be done because of the neuroma.”
[46] The Christmas season was critical in the retail sales business. Before Christmas, Mr. Tomeh’s employer said if he did not come back he would lose his job. He went back but could not stand very much and needed frequent breaks. His income was drastically lower than normal.
[47] In his testimony, Dr. Cheah agreed that because of the nature of the surgery that he actually did, some pain and numbness will likely be permanent. Indeed, Mr. Tomeh still has pain and numbness. The pain is inside his foot. It is sharp, and comes and goes. Mr. Tomeh still regularly takes painkillers. In addition, Mr. Tomeh has no feeling in part of the bottom of his foot, which affects his balance and means he cannot walk with bare feet because he cannot feel what he is stepping on. He also still has swelling in his foot after about two hours of standing, which is obviously a problem at work where he must stand for four hours at a time. He now needs orthotics and special shoes. Based upon Dr. Cheah’s own admissions I find that these were consequences of the surgery he performed.
[48] As a result, Mr. Tomeh’s life has been significantly affected. He had a lengthy period of reduced income. His time at work is much more difficult. He no longer participates in many family activities, and is unable to be active and enjoy his time off work with his family.
[49] The medical records of Mr. Tomeh’s family doctor show that he has had other medical conditions over the intervening years, including bunions, headaches, knee pain and back pain. While these conditions would also have some impact on Mr. Tomeh’s quality of life from time to time, they do not displace the permanent problems he has with his foot.
Expert Witnesses
[50] Two expert witnesses testified, neither of whom had expertise about all matters at issue.
[51] The plaintiffs called Dr. Fred Gentili, a well-qualified neurosurgeon who is currently on active staff in the University Health Network, a group of hospitals including the Toronto General Hospital, the Toronto Western Hospital and Princess Margaret Hospital. Within the Network, the neurosurgery is now done at the Toronto Western Hospital, where Dr. Gentili therefore currently has his clinical practice. Dr. Gentili is also a professor at the University of Toronto, Department of Surgery. Dr. Gentili obtained his Fellowship in 1980 and has been in surgical practice and teaching for more than 30 years. Dr. Gentili has also held positions that include responsibilities regarding all types of surgeons, and the evaluation of all surgical specialties, not solely neurosurgeons. He is an expert in peripheral nerve surgery, which includes the type of surgery Mr. Tomeh ultimately underwent on his foot.
[52] The defendant objected to Dr. Gentili’s expertise on the basis that the relevant standard of care is that of an orthopedic surgeon, not a neurosurgeon. As well, the defendant objected because Dr. Gentili did not do preoperative assessments of patients believed to have a ganglion cyst. Dr. Gentili frankly agreed that he would not see a patient with the diagnosis of ganglion cyst only.
[53] As set out in more detail in my ruling made during the trial, I accepted Dr. Gentili as an expert on the areas tendered, except for the pre-operative discussions with this patient. The actual problem Mr. Tomeh had – a nerve tumour – is squarely within Dr. Gentili’s expertise, including peripheral nerve surgery, the demands and risks of the surgery and the minimum standard of care required for any physician undertaking that surgery. The evidence was that this type of surgery is not only done by neurosurgeons, but also by plastic surgeons and orthopedic surgeons, and Dr. Gentili’s credentials included appointments that dealt with all surgeons. The fact that he is not an orthopedic surgeon could be and was the subject of argument as to the weight to be given to his evidence.
[54] The defendant called Dr. James P. Waddell as an expert witness. Dr. Waddell is an orthopedic surgeon who received his Fellowship in 1972. He has practised at St. Michael’s Hospital for about 40 years, at Sunnybrook Hospital since 1997 and also is a professor at the University of Toronto. Dr. Waddell testified that he was often involved in the care and treatment of ganglions. When asked about any research on ganglions, he testified that because ganglions are very common and often treated without surgery, there is not sufficient interest in them to generate much literature.
[55] Dr. Waddell emphasized in his testimony that he is not an expert in peripheral nerve surgery and does not perform it. If he saw a patient who had a nerve tumour, he would refer the patient to another physician for treatment.
[56] Plaintiffs’ counsel did not challenge Dr. Waddell’s expertise, instead leaving it to later cross-examination. I accepted Dr. Waddell as an expert orthopedic surgeon.
Expert Evidence
[57] With respect to the preoperative standard of care, the plaintiffs’ expert Dr. Gentili opined that the differential diagnosis should have included a peripheral nerve tumour as well as a ganglion cyst and a neurofibroma. With respect to the diagnosis, while he would have ordered more tests, Dr. Gentili agreed that Mr. Tomeh’s pain and numbness was consistent with a ganglion as one of the possible causes. Most significantly, he agreed that a ganglion was a reasonable working diagnosis.
[58] Dr. Waddell opined that based upon his review of the medical records that Dr. Cheah’s assessment and diagnosis of Mr. Tomeh met the standard of practice of orthopedic surgeons at the relevant time. He thought it reasonable to rely in part on the ultrasound report, despite its frailties. He did not believe it was necessary to order more tests. He assumed that Dr. Cheah entertained the possibility that Mr. Tomeh’s lump was not a ganglion but given the rarity of schwannomas did not think it necessary to keep that possibility on the list. In his opinion it was not necessary to have a discussion with the patient about schwannomas given the findings in the history, investigation and examination.
[59] With respect to advice about risks of surgery for a ganglion cyst, Dr. Waddell testified that if Dr. Cheah advised of the risks of anesthetic, infection, bleeding and damage to nerves and vessels, that was appropriate.
[60] With respect to consent, Dr. Waddell acknowledged that it was the patient’s decision, and patient circumstances vary including what things may be important to them in deciding and weighing the risks and benefits. He agreed that it could be important to a salesperson making a living on his feet to know how the surgery might affect his feet, walking and balance, for example. This would be an entirely reasonable concern. It was for the doctor to the outline the risks and where the risk of nerve injury was significant, spend more time discussing that risk factor.
[61] I accept Dr. Waddell’s evidence on the pre-operative assessment and diagnosis of and discussion of risks with Mr. Tomeh, in preference to Dr. Gentili, given that Dr. Gentili is not an orthopedic surgeon and does not see this type of patient in the ordinary course of his practice.
[62] With respect to the surgery itself, Dr. Gentili observed that while a schwannoma can be excised by different specialties, in his opinion the standard of care for this type of surgery should be the same regardless of the specialty involved. No contrary evidence of any weight was tendered on this point. Dr. Waddell could not legitimately contest this opinion because, as he himself made clear, he is not an expert in peripheral nerve surgery.
[63] Dr. Gentili opined that there are significant risks involved in peripheral nerve surgery with regard to injury to the fibres of the peripheral nerve, which can result in sensory disturbance as well as weakness and paralysis. He testified that the removal of a schwannoma has significant risks. As the defence expert Dr. Waddell admitted, the chance of nerve damage is 100%.
[64] Dr. Gentili identified some concerns with the surgery here, noting the relatively short operative time of approximately 40 minutes and the sacrificing of the nerve. Although he fairly agreed that operative times can vary for a number of reasons, and the exact time taken for surgery does not precisely equate with the standard of care, in his experience with this type of surgery 40 minutes is quite short. With respect to Dr. Cheah sacrificing the nerve, Dr. Gentili opined that while the removal of the nerve tumour will result in nerve damage, the majority of the nerve should be spared. However, Dr. Gentili did not affirmatively opine that Dr. Cheah failed to maintain the standard of practice of the profession is this regard.
[65] Significantly for this case, Dr. Gentili opined that Dr. Cheah could have stopped the surgery, which would have allowed for a full discussion of the risks with Mr. Tomeh and a decision by him.
[66] I accept Dr. Gentili’s opinion regarding the nature and risks of this type of surgery, including stopping the surgery, which is squarely within his expertise. I further accept his evidence regarding his concerns about the actual surgery, as qualified by him in his evidence.
[67] With respect to whether Dr. Cheah had the requisite experience to do the surgery at all, the evidence came out late in the trial that Dr. Cheah had only participated in this type of surgery twice, during one of his clinical fellowships. On both occasions he was under the direct supervision of the attending physician, who also participated in the surgery. Dr. Cheah next encountered nerve surgery when he decided to proceed with it on September 23, 2003 on Mr. Tomeh. This specific information about Dr. Cheah’s limited experience was not put to Dr. Gentili when he was cross-examined about whether or not Dr. Cheah was properly qualified to undertake the surgery. Only general statements about Dr. Cheah’s fellowship training were put to Dr. Gentili. As a result, while Dr. Gentili did agree that Dr. Cheah was qualified based upon the general propositions put to him, I do not place as much weight on that evidence.
[68] Dr. Waddell also testified about the surgery itself, the choice to proceed with it once the nerve tumour was discovered and the length of time the surgery should take. His evidence was generally favourable to Dr. Cheah; however, I do not accept this evidence given Dr. Waddell’s admission that he is not an expert in peripheral nerve surgery.
[69] Lastly, Dr. Waddell opined that the post-operative course of treatment was satisfactory, a matter that was not seriously at issue at trial based on the expert evidence.
Issues
[70] The plaintiffs claim negligence (including lack of informed consent) and battery.
Negligence
[71] Leaving aside the question of consent, the negligence claims in this case focus on the following allegations:
(a) the failure to properly assess and accurately diagnose the lump;
(b) the lack of competence to embark on the nerve tumour surgery and failure to competently conduct the surgery; and,
(c) the failure to give proper care after the surgery.
[72] To succeed in an action for medical negligence, the plaintiff bears the onus of proving, on a balance of probabilities, that the defendant breached the standard of care. Ordinarily, expert evidence is required to establish the standard of care and determine whether the standard of care has been met:
It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field: ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674 at para. 38.
[73] While there may be accepted practices that are “fraught with obvious risks” such that the practice itself may be negligent, that is not the issue here: ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674 at 697. Here, expert evidence demonstrating a breach of the standard of practice is required.
[74] With respect to the standard of care for physicians, they must practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances:
In the case of a specialist, … the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field: ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674 at para. 33.
[75] Based upon the expert evidence, I find that the plaintiffs have not met their onus to prove that Dr. Cheah failed to meet the requisite standard of care in his assessment, diagnosis and post-operative care of Mr. Tomeh. I have accepted Dr. Waddell’s expert evidence in these respects. As well, Dr. Gentili agreed that the diagnosis of ganglion was a reasonable one.
[76] With respect to undertaking and conducting the peripheral nerve surgery, there is some evidence that causes me concern. Dr. Cheah had very little experience in peripheral nerve surgery. He had done only two supervised surgeries. Dr. Gentili did agree in cross-examination that Dr. Cheah had adequate training; however, Dr. Gentili was not given the specific information about Dr. Cheah’s very limited actual experience. That evidence came out later in the trial. While the surgery did not take as long as Dr. Gentili would expect, he also agreed that operative time alone did not indicate a failure to maintain the standard of practice. Lastly, the nerve was sacrificed, raising a question about whether the nerve damage was more extensive than it ought to have been. While the expert evidence about this aspect of the surgery does not establish that the standard of practice was met, Dr. Gentili did not affirmatively opine that there was a failure to maintain the standard of practice. It is the plaintiffs’ burden and it was not met.
[77] These allegations of negligence have therefore not been proved.
Negligence/Informed Consent
[78] A physician has a duty to obtain the informed consent of the patient before treatment is provided. The physician must disclose the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of an operation: Hopp v. Lepp, 1980 14 (SCC), [1980] 2 S.C.R. 192 at p. 210.
[79] The Ontario Court of Appeal has summarized the principles that apply to the determination of which risks are material, in Videto et al. v. Kennedy (1981), 1981 1948 (ON CA), 33 O.R. (2d) 497 (C.A.) at pp. 502-503, as follows:
The question of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solely by the professional standards of the medical profession at the time. The professional standards are a factor to be considered.
The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient’s decision whether or not to undergo the operation. If the patient asks specific questions about the operation, hen the patient is entitled to be given reasonable answers to such questions. In addition to expert medial evidence, other evidence, including evidence from the patient or from members of the patient’s family is to be considered.
The patient may have expressed certain concerns to the doctor and the latter is obliged to meet them in a reasonable way. What the doctor knows or should know that the patient deems relevant to a decision whether to undergo prescribed treatment goes equally to his duty of disclosure as do the material risks recognized as a matter of required medical knowledge.
A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences, such as paralysis or even death, then it should be treated as a material risk and should be disclosed.
The patient is entitled to be given an explanation as to the nature of the operation and its gravity.
Subject to the above requirements, the dangers inherent in any operation such as the dangers of anaesthetic, or the risks of infection, do not have to be disclosed.
The scope of the duty of disclosure and whether it has been breached must be decided in relation to the circumstances of each case.
The emotional condition of the patient and the patient’s apprehension and reluctance to undergo the operation may in certain cases justify the surgeon in withholding or generalizing information as to which he would otherwise be required to be more specific.
The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure.
[80] Here, the diagnosis was a ganglion cyst. The starting point is, therefore, whether there was informed consent for the ganglion surgery.
[81] I conclude that for Mr. Tomeh, the risk of nerve damage in his foot was a material risk. Even a small risk of permanent damage to his foot was critical to him in his work. As he testified, his living is in his foot. His ability to work was at the forefront of his concern about surgery, and was the subject of his question to Dr. Cheah about the surgery and how quickly he would be back at work. That risk ought to have been highlighted for him, in the circumstances. The decision in Graham v. Millman, [1993] O.J. No. 1970 (Gen. Div.), although different in some respects, provides another illustration of how the possibility of nerve damage can be material to a patient.
[82] It was Dr. Waddell’s opinion that if the general risks of surgery (including nerve damage) were discussed with Mr. Tomeh that was sufficient disclosure. I have found those risks were not discussed.
[83] Further, I have accepted Mr. Tomeh’s evidence that if he had been told of the possibility of nerve damage he would have declined the surgery at that time. He specifically raised his need not to miss work with Dr. Cheah. That was his priority. The all-important Christmas season was approaching. This was elective surgery. He had already had the lump for many years and was managing with it.
[84] The defendant relies upon evidence that the pain and numbness associated with Mr. Tomeh’s lump was increasing, and Dr. Gentili agreed that surgery is usual course of treatment for a schwannoma. In raising the evidence about schwannomas, the defendant is moving away from the diagnosis of ganglion. The diagnosis was not made at that time. The first question about preoperative consent relates to the diagnosis of ganglion, not what Mr. Tomeh would have done about a nerve tumour and its characteristics.
[85] Given the importance of Mr. Tomeh’s foot to his family’s livelihood, I find that he would have taken a “wait and see” approach and obtained another opinion before considering surgery.
[86] I therefore conclude that the risk of nerve damage was material and was not disclosed to Mr. Tomeh. If Mr. Tomeh had been informed of the possibility of nerve damage as a general surgical risk, under the modified objective test for causation, the reasonable person in his situation would not have proceeded with the surgery for the removal of the diagnosed ganglion: Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539 at para. 6.
[87] The claim for lack of informed consent to the ganglion surgery has therefore been proved.
Battery
[88] The above conclusion on informed consent is premised on the diagnosis of ganglion, which both experts opined was a reasonable one. This does not address the question of consent for peripheral nerve surgery. The surgery actually done was not ganglion surgery, and there is no question that the material risks of peripheral nerve surgery were never discussed with Mr. Tomeh. Nor is there any real question about consent in that regard – Mr. Tomeh did not consent to the removal of a nerve tumour from his foot, as discussed further below. I therefore find that the facts of this case are most appropriately addressed in the claim for battery.
[89] Battery is the unjustified application of force to a person by another. Battery does not require proof of causation and casts upon the defendant the burden of proving consent to what was done: Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880 at p. 890; Astaphan v. Scarborough General Hospital, [1996] O.J. No. 2666 (Gen. Div.) at para. 38.
[90] It is therefore unnecessary for Mr. Tomeh to prove that he would have refused his consent if he had been properly informed about the peripheral nerve surgery, although on the evidence I find that has been proved in this case.
[91] In the medical context, a claim for battery exists where the patient did not consent to the surgery at all, or where consent was for a different procedure than was performed, or where consent was obtained fraud or misrepresentation: Reibl v. Hughes, at pp. 890-92.
[92] To determine if there was consent, it is necessary to examine all relevant circumstances leading up to the surgery. Any written consent is one of the circumstances to take into account, but it is not determinative: Astaphan v. Scarborough General Hospital, [1996] O.J. No. 2666 (Gen. Div.) at para. 38, citing Brushett v. Cowan (1990), 1990 6513 (NL CA), 69 D.L.R. (4th) 743 (Nfld. C.A.), at p. 751.
[93] Having considered all the circumstances, I find that there was no consent to the peripheral nerve surgery. Mr. Tomeh did not agree to undergo it. Mr. Tomeh’s consent was to a different procedure.
[94] In contrast to some of the case authority put before me, this is not a case where the doctor claims to have discussed the possibility of the surgery that was actually done. Dr. Cheah does not say he discussed the possibility of a nerve tumour, let alone any of the risks of its surgical removal. These matters were never discussed with Mr. Tomeh. Leaving aside the issue of the consent forms, which are discussed below, all the discussions related to the removal of a ganglion.
[95] Dr. Cheah testified that he had consent because the consent forms that Mr. Tomeh signed referred to the removal of a “soft tissue tumour”, which is a general description that also captures nerve tumours. That argument fails. The use of a general term in a consent form does not transform one diagnosis and treatment discussion into another one. The doctor cannot both say that he only discussed one diagnosis and its treatment options and risks with the patient and at the same time, say the use of a general phrase gives him consent to a different surgery, arising from a different diagnosis and with materially different risks that were never discussed. Nor is this a case where the doctor could reasonably infer consent: O’Bonsawin v. Paradis (1993), 15 C.C.L.T. (2d) 188) (Ont. S.C.J., Gen. Div.) at paras. 44-7.
[96] The surgery actually performed was materially different than the surgery discussed. It was much more complex, and necessitated nerve damage. The surgery had significantly different risks, and those risks were especially material in Mr. Tomeh’s particular circumstances given the importance of his foot to his job and ability to earn a living and support his family.
[97] Even if Mr. Tomeh had read and understood the consent forms, they did not expand his consent to cover a fundamentally different surgery; so different that the expert evidence is that the removal of a ganglion would ordinarily be done by an orthopedic surgeon but orthopedic surgeons usually do not do peripheral nerve surgery.
[98] It was also suggested that since Mr. Tomeh consented to the removal of a lump from his ankle to resolve his pain, that was enough. On the contrary, I have found that his consent was limited to ganglion surgery.
[99] The defendant also advanced the proposition that an individual’s right to determine medical treatment on his or her person should be tempered by the overall societal interest “of precluding undue hindrance of the physician legitimately acting within the scope of the consent actually given by adopting too narrow a view of its ambit” as set out in Brushett v. Cowan (1990), 1990 6513 (NL CA), 69 D.L.R. (4th) 743 (Nfld. C.A.), at ps. 752-53. In that case, the court was looking to go beyond some of the words in the written consent, and went on to say that “the full extent of that consent must be gained by looking at all of the circumstances arising from the relation of doctor and patient, against the background of which the formal consent will be viewed.” There may well be cases where, in all the circumstances, the physician should not be unduly hindered by the written consent taken alone. But that it not the issue in this case.
[100] Thus, I conclude that the plaintiffs have proved their case in battery.
Damages
[101] In battery, a physician is liable for all the direct consequences of the battery. In that I have found that Mr. Tomeh would have declined the surgery if properly informed, the quantum of damages for the negligent failure to obtain informed consent is the same as for battery.
[102] Mr. Tomeh was unable to return to work after the surgery. He did not return until December, and then only to keep his job. He did receive some unemployment payments while off work. Once he returned, his income was drastically affected. As a result of the pain and other problems with his foot, his income in the all-important Christmas season was down by about 80%.
[103] In 2004, Mr. Tomeh was approached by Tip Top Tailor to be a manager at Sherway Gardens. Tip Top knew him from before the surgery. He joined Tip Top and remained there until joining Harry Rosen in 2007. Slowly, his income rose. As of 2007, it was almost back to pre-surgery levels, without factoring in any increases that may otherwise have happened in that period, but for the injury.
[104] Although the positions held in the pre-surgery period had different forms of compensation (some commission, some commission plus base), his income was fairly steady at or just below $50,000 a year (adjusted for time off work). Mr. Tomeh testified that he believed he lost $10,000 of income each year post-surgery, due to the problems with his foot. The plaintiffs submitted a loss of income claim based upon the difference between his income in the period 2003-2007 and his average income before then, totaling $42,367. This includes the three-month period in 2003.
[105] The defendant disputes the use of averaging to assess lost income. While the approach may not always be appropriate, in this case it is conservative. It does not provide for future income increases after the surgery. It seeks nothing after 2007 despite the reality that the permanent foot impairment must affect job performance. It is consistent with Mr. Tomeh’s evidence about $10,000 of lost income each year.
[106] It should not be necessary for every plaintiff to hire an expert accountant, and incur those costs, to prepare an income loss claim in this range. I am satisfied that the plaintiff Mr. Tomeh has proved that his income loss is at least the amount claimed, on a balance of probabilities.
[107] The defendant also submitted that Mr. Tomeh’s lost income claim would be more properly characterized as a loss of competitive advantage claim. I disagree. That type of claim is more customarily advanced for future losses, and here Mr. Tomeh is not seeking lost income after 2007.
[108] Mr. Tomeh also claims a modest amount for special shoes, of $2,745, but has not claimed for the other out-of-pocket expenses that he has had to pay. This claim was not seriously disputed.
[109] Mr. Tomeh has also endured considerable pain and suffering, and permanent impairment of his foot. He has problems with balance, lack of sensation, pain and swelling. Because of the nature of his work, these problems have a regular and significant impact on him. He is in additional discomfort, which not only affects his work but also has meant a substantial change in his ability to enjoy his time off with his family. However, Mr. Tomeh was already experiencing some pain and swelling prior to the surgery. Taking this into account, I assess Mr. Tomeh’s general damages at $25,000. He also had a period of about three months of more severe problems directly following the surgery, with extreme pain and discomfort. I assess these general damages at $5,000.
[110] Mrs. Tomeh claims under the Family Law Act, s. 61, for loss of care and companionship and for the services she had to provide to her husband after the surgery. She provided extensive assistance in the first three months, caring for him while he recovered from the surgery and taking on more of their parental responsibilities. This has continued at a more modest level since 2003. I assess these damages at $2,500 for each of the two periods, totaling $5,000.
Disposition and Costs
[111] I therefore find in favour of the plaintiff and order that the defendant pay the following:
(a) to Mr. Tomeh, a total of $75,112 in damages; and,
(b) to Mrs. Tomeh, $5,000 in regard to her Family Law Act claim.
[112] If the parties are unable to agree on interest and costs, the plaintiffs shall make their submissions by brief written submissions together with a bill of costs, to be delivered by December 15, 2013. The defendant’s brief written response shall be delivered within 30 days after service of the plaintiffs’ submissions.
___________________________
W. MATHESON J.
DATE: November 14, 2013
COURT FILE NO: CV-04-276022CM3
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Samir Tomeh, Lamis Mraad Tomeh, Mary Tomeh, minor, Marla Tomeh, minor, Marell Tomeh, minor by their Litigation Guardian, Samir Tomeh
Plaintiffs
- and -
Dr. Henry K. Cheah
Defendant
REASONS FOR DECISION
W. MATHESON J.
Released: November 14, 2013