CITATION: Ellsworth v. Singer, 2016 ONSC 4281

COURT FILE NO.: 2435/10

DATE: 20160629

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EARLINE ELLSWORTH AND DEREK MACINNIS

Plaintiffs

– and –

DR. ROBERT HARRY SINGER

Defendant

Stephen J. MacDonald and Maureen Whelton, for the Plaintiffs

Elder C. Marques and Eric Pellegrino, for the Defendant

HEARD: September 15, 17, 18, 21, 22, 23, 24, 28, 29, 30, 2015, October 1, 2, 2015 and January 13, 2016

REASONS FOR JUDGMENT

Coats J.

A. Factual Overview:

[1] The following is a brief summary of the facts as agreed upon by the parties. Where the parties’ versions of events differ, those differences will be highlighted when analyzing the relevant issues. This case arises out of the care and treatment provided to the Plaintiff, Earline Ellsworth (the “Plaintiff”), by the Defendant ophthalmologist, Dr. Robert Singer, in 2007 and 2008.

[2] Ms. Ellsworth is employed as a spa coordinator and receptionist at the Follicle, a spa in Burlington, Ontario. She has worked at the Follicle since 2004. Prior to working at the Follicle, the Plaintiff was a dental assistant. Ms. Ellsworth was born on January 14, 1957. She was 50 years of age in 2007, when the events pertinent to this case began, and 58 years of age at the trial. She has a son, Derek MacInnis, born November 25, 1991. He is the second Plaintiff in this case. The Plaintiff was an active person prior to 2007. She enjoyed bicycling and other various activities. She did not own a car and still does not, although she has maintained her driver’s licence. She has worn eyeglasses since kindergarten. She was nearsighted (“myopic”).

[3] In 2007, the Plaintiff suffered cataracts in both eyes. She was referred to Dr. Singer for the treatment of her cataracts. The Defendant is an experienced general ophthalmologist with a community based practice in Burlington, Ontario. The only effective treatment for cataracts involves replacing the natural lens of the eye with an artificial lens known as an intraocular lens (“IOL”). This treatment offers the added benefit of replacing the natural lens with an IOL that improves the patient’s vision. In order to determine the appropriate power for the IOL, the patient’s eye is measured prior to surgery. There are two methods to measure a patient’s eye. The choice of method is central to this action.

[4] The first method is known as the A-scan. The second method is known as the IOL Master. The A-scan is an older method. It involves measurements being taken multiple times to ensure the accuracy of those measurements. Sometimes the measurements vary and the doctor must select which measurements the IOL will be based on. Variable measurements are common when the patient is myopic. The A-scan is covered by OHIP. The IOL Master is known to be significantly more accurate but is not covered by OHIP. The IOL Master is especially more accurate when the patient is myopic. Dr. Singer offered both choices to the Plaintiff on October 17, 2007 during Ms. Ellsworth’s initial consultation.

[5] The Plaintiff chose the A-scan method. At the time, the IOL Master would have cost her roughly $200 for both eyes. Although she chose the more cost effective measurement technique, she also chose to have upgraded lenses at an additional cost not covered by OHIP. The A-scan of the Plaintiff was conducted by the Defendant’s technicians, in the absence of the Defendant, on October 30, 2007. The technicians had trouble taking the measurements.

[6] Dr. Singer performed bilateral cataract surgery on Ms. Ellsworth in 2008. Her first surgery was initially scheduled for December 2007 but had to be rescheduled. She underwent cataract surgery on her right eye on April 22, 2008 and on her left eye on May 6, 2008. There were no intraoperative complications and her cataracts were treated.

[7] The measurements taken using the A-scan proved to be inaccurate. The IOL used resulted in her experiencing farsightedness (“hyperopia”). The Plaintiff was dissatisfied with this result and pursued further surgeries. The first subsequent procedure she underwent is known as a YAG laser surgery, whereby remaining cataract particles were removed with a laser. This surgery was performed by Dr. Singer without any complications on August 12, 2008 and the clouding was successfully treated.

[8] Still unsatisfied with her surgical result, the Plaintiff met with Dr. Omar Hakim to discuss her options. He advised of several options and then advised the Plaintiff to explore her options with Dr. Singer. The Plaintiff was then referred to Dr. Iqbal Ahmed by Dr. Singer. The referral took place shortly after Ms. Ellsworth met with Dr. Singer on November 17, 2008. The Plaintiff then underwent what is known as “piggyback” surgery, whereby a second “piggyback” IOL was placed on the IOL in each eye. These piggyback surgeries were conducted by Dr. Ahmed on April 21, 2009, for the right eye, and on July 21, 2009, for the left eye. It is not disputed that the piggyback surgery effectively corrected Ms. Ellsworth’s visual acuity. What is disputed is whether the piggyback surgery caused Ms. Ellsworth to suffer from a condition known as dysphotopsia.

B. Overview of Ms. Ellsworth’s Testimony – Credibility and Reliability:

[9] Dr. Singer’s counsel submits that I should find that Ms. Ellsworth’s overall testimony demonstrated faulty recollection of important issues and that her testimony regarding her alleged damages was shifting and exaggerated. The defence suggests that during cross-examination she sought to backfill and explain away gaps and inconsistencies in her testimony in a manner that suggests her evidence cannot be relied on. These submissions focus on six specific topics from Ms. Ellsworth’s testimony:

1. Her inability to recall discussions she had with Dr. Singer during her initial appointment about the benefits of the IOL Master;

2. Her evidence that she expected to have “perfect driving vision” after her cataract surgeries;

3. Her evidence that Dr. Singer was dismissive and arrogant during their final meeting on November 17, 2008;

4. Her evidence on when she does and does not wear glasses;

5. Her evidence on her mobility with glasses; and

6. Her evidence on her use of a collapsible mobility cane.

[10] Dr. Singer’s counsel suggests that these concerns with Ms. Ellsworth’s testimony should affect my assessment of her evidence throughout my analysis of liability, causation and damages. I disagree. I will deal with these concerns at the outset because of the defence’s position that their concerns permeate all of Ms. Ellsworth’s testimony.

[11] With respect to point 1) above, Ms. Ellsworth stated she could not recall the exact conversation she had with Dr. Singer on October 17, 2007. This is not surprising given that it was one conversation and it occurred roughly eight years before she testified. She testified that she understood the measurements would be done in Dr. Singer’s office but she did not recall any further discussion about the measurements. She had some recollection of comparing the IOL Master and A-scan and being left with the impression that she would get the result she expected (perfect driving vision without the need for glasses other than drug store readers) with the A-scan technique.

[12] Ms. Ellsworth testified that Dr. Singer did not recommend she use the IOL Master. This is inconsistent with Dr. Singer’s evidence. On the liability issue, I have assumed Dr. Singer’s description of his standard discussion to be what occurred during Ms. Ellsworth’s initial consultation. I have assumed Dr. Singer informed Ms. Ellsworth of the statistics regarding the accuracy of each method based on his evidence. Having this type of discussion with patients was a regular event for him. I rely on his standard practice. This does not mean Ms. Ellsworth’s evidence is unreliable. It was a long time ago and to the extent Ms. Ellsworth’s evidence differs from Dr. Singer’s with respect to this initial meeting, I attribute it to her lack of memory rather than a lack of credibility. I have reviewed Ms. Ellsworth’s evidence on this initial consultation in detail. As will be set out below, I find she was focused on the expected outcome. She understood from her discussion with Dr. Singer that after the surgeries she would have perfect driving vision without the need for glasses other than drug store readers. The older A-scan technology was sufficient, as she understood it, to provide her with this outcome. Other than this salient point, Ms. Ellsworth can no longer recall the details of this discussion.

[13] Ms. Wendy Van Kessel, who testified in this trial, is a technician in Dr. Singer’s office. She performed Ms. Ellsworth’s A-scan measurements. According to her notes, Ms. Ellsworth wanted the IOL Master but could not afford it. There are two notes to this effect, one made after the measurements were taken in October 2007 and one made in March 2008. In response, Ms. Ellsworth testified that she did not recall having a discussion with anyone from Dr. Singer’s office to this effect. She said she did not recall discussing her financial situation with the technicians. She went so far as to suggest that the note was possibly fabricated. At first blush this seems problematic as there is absolutely nothing to substantiate the suggestion that the notes were fabricated. However, Ms. Van Kessel does not remember anything about the conversation that gave rise to these notes either and she authored the notes. No witness was able to tell me what the notes actually reflected in terms of the discussion between Ms. Ellsworth and the technicians. I draw no inference impacting on the credibility of Ms. Ellsworth from this. She could not explain someone else’s note so she speculated. Clearly, she should not have speculated; however, this does not taint the totality of her evidence.

[14] With respect to point 2), I find nothing exaggerated, inaccurate or concerning with Ms. Ellsworth’s use of the phrase “perfect driving vision.” She meant driving vision without using corrective glasses. This is clear from her testimony. Nothing turned on her use of the word “perfect”. She used it to mean without glasses. Dr. Mandelcorn also used this term in the same way. This does not diminish the credibility of Ms. Ellsworth’s testimony.

[15] With respect to point 3), I do not find this significant in any way. Ms. Ellsworth could have found Dr. Singer dismissive and arrogant even if he was trying to be caring and helpful. Nothing turns on her perception of Dr. Singer’s demeanor. It is irrelevant to my considerations. I understood Ms. Ellsworth’s testimony with respect to her final appointment in November 2008 to be that Dr. Singer did not express treatment or referral options to her until she asserted herself and told him how unhappy she was with her eyes. He then referred her to Dr. Ahmed. I do not find this inconsistent with Dr. Singer’s evidence that Ms. Ellsworth expressed her unhappiness and was quite distressed and that he presented her with options. Ms. Sparling, a friend of Ms. Ellsworth’s, accompanied Ms. Ellsworth to the appointment. She testified that Ms. Ellsworth told Dr. Singer at the meeting that she found him dismissive and arrogant. At that point, according to Ms. Sparling, Dr. Singer seemed to step up and pay more attention. Only then did he discuss options. Her evidence was similar to Ms. Ellsworth’s on this point. Clearly, Ms. Ellsworth went to the meeting frustrated and upset. Her memory of events must be viewed in this context and is understandable from this perspective.

[16] Ms. Ellsworth testified that she did not remember Dr. Singer offering any explanation for her outcome. This is inconsistent with Dr. Singer’s evidence and the evidence of Ms. Sparling. I do not find that this inconsistency affects Ms. Ellsworth’s overall credibility. She was clearly distraught, focussing on solutions rather than explanations. Dr. Singer referenced how distressed Ms. Ellsworth was at this final meeting during his own testimony.

[17] Points 4) to 6) above deal with Ms. Ellsworth’s evidence regarding the extent of her visual difficulties. The defence seems to submit that her inconsistent testimony on these issues affects the credibility and reliability of her evidence on all issues. With respect to the issue of liability, as will be detailed below and as referenced above, I have assumed Dr. Singer’s description of his standard initial consultation with respect to comparing the IOL Master to the A-scan to be correct. I did not rely on Ms. Ellsworth’s recollection in this regard given that the events occurred many years ago and discussions of this sort were part of Dr. Singer’s daily work. Ms. Ellsworth’s evidence about the visual difficulties she experienced after her cataract surgeries was supported by several sources. According to the evidence, Dr. Singer, Dr. Brodie, the Plaintiff’s optometrist, Dr. Hakim, Dr. Ahmad, and Ms. Ellsworth all took steps consistent with Ms. Ellsworth suffering the difficulties she described in her testimony. The evidence of the lay witnesses called by Ms. Ellsworth also supports her explanation of her visual difficulties after her cataract surgeries. Her evidence about the visual difficulties she has experienced since the piggyback surgeries was confirmed by the same lay witnesses and by the opinion of Dr. Mark Mandelcorn, the expert called on behalf of the Plaintiff. After meeting with her and examining her in 2009, Dr. Mandelcorn formed the opinion that she suffered from dysphotopsia.

[18] I do not find that her evidence about her use of glasses makes her evidence less credible or reliable. She did testify in-chief that she uses glasses all the time and in cross-examination readily acknowledged that there were short times in the day when she does not wear glasses. For instance, she does not always wear glasses when she goes outside her workplace for a short break or to carry out garbage, or when she goes from her desk to the washroom. I do not find this inconsistency sufficient to support the suggestion that her evidence is unreliable as to the nature and extent of her visual difficulties. Her evidence as a whole, together with the evidence of Ms. Sparling and Ms. Green, her manager at work, which corroborates Ms. Ellsworth’s evidence about the extent of her visual difficulties and their effect on her day to day life, makes her evidence in this regard reliable. In addition, there is no evidence to suggest that the symptoms of dysphotopsia are minimized by wearing glasses. There is no evidence to suggest that a person suffering from dysphotopsia should be expected to wear their glasses more consistently than Ms. Ellsworth.

[19] I did not find that Ms. Ellsworth gave shifting narratives of her mobility. She testified that people initially observed her gait to be “like a blind person.” She acknowledged that she has not heard this in some time and that her mobility has improved in public places and outdoors. She said on some days she moves normally and on others more cautiously. I understood her evidence to be that sometimes she feels around for things to give her more confidence with her mobility and other times she does not. I was given the overall impression that sometimes she has to be more cautious than at other times and that some aspects of her mobility have improved and others have not. I do not find that this evidence affects her overall credibility or the reliability of her evidence. It simply reflects her fluctuating reality.

[20] With respect to Ms. Ellsworth’s testimony about the mobility cane, her evidence suggests she purchased it a year ago and rarely uses it. This evidence is somewhat troubling. She does not use it in the very circumstances in which she experiences visual difficulties. This may be because of embarrassment or otherwise. However, this alone or in conjunction with the other credibility concerns raised by the defence does not affect my view of her overall description of her visual difficulties. I have considered her reluctance to use a device that might help her in my review of the assistive devices proposed in the damages portion of these Reasons.

C. Issues:

[21] I will deal with the issues in this case in the following order:

1. The Standard of Care

a. The Plaintiff’s Position

b. The Defendant’s Position

c. The Law

d. Analysis

2. Causation

a. The Plaintiff’s Position

b. The Defendant’s Position

c. The Law

d. Analysis

3. Damages – Ms. Ellsworth

4. Derek MacInnis’s Family Law Act Claim

5. Conclusion

1) The Standard of Care

[22] Both parties agree that the standard of care required the Defendant to exercise the diligence, care, knowledge, skill and caution of a normal prudent physician of the same experience and standing. The parties disagree on what a normal prudent physician would have done in this scenario.

(a) The Standard of Care – The Plaintiff’s Position

[23] The Plaintiff argues that a normal prudent physician exercising diligence, care, knowledge, skill and caution would have offered her an opportunity to reconsider her choice of the A-scan once the A-scan results were received. Although some variance is normal with a myopic patient, the variance in the Plaintiff’s measurements fell well outside the expected range, even for a myopic patient.

[24] The Plaintiff’s expert, Dr. Mark Mandelcorn, testified that the axial length of the eye is measured in millimeters. The axial length of the eye corresponds with the appropriate lens power, measured in diopters. If the measurement is inaccurate by one millimeter, the power of the patient’s IOL will be off by two and a half diopters. Dr. Mandelcorn testified that typically A-scan measurements do not vary. Dr. Mandelcorn testified that when the results vary, they typically do so by less than a quarter of a diopter. In Ms. Ellsworth’s case, the measurements taken from the left eye varied by approximately five diopters. Dr. Mandelcorn testified that this amount of variance was too large to allow Dr. Singer to choose the correct lens power with any degree of certainty. Dr. Mandelcorn testified that the measurements for the right eye varied by approximately four diopters. According to Dr. Mandelcorn, this degree of variance likewise made it impossible for Dr. Singer to choose the appropriate lens power with any degree of certainty.

[25] Dr. Singer recognized this fact at his examination for discovery, read in at trial, where he acknowledged that he had some concerns about the measurements. At his examination for discovery, Dr. Singer said that he found that the measurements were more difficult than usual to interpret. He noted that normally the A-scan is 50 to 60 percent accurate, but that Ms. Ellsworth’s results were “in the less accurate category.” He acknowledged that he had difficulties satisfying himself that he could choose the correct lens. He acknowledged on cross-examination that he had more difficulty than usual. This suggests that he did not expect such inadequate measurements. He could not have warned the Plaintiff about the possibility of such inadequate measurements during their initial discussion because they were so outside the expected range. The Defendant therefore had a duty to update the Plaintiff about the increased risk of proceeding to surgery with these inadequate measurements. Prudent risk management could require nothing less.

[26] Dr. Mandelcorn testified that Dr. Singer should have called Ms. Ellsworth to inform her of the inadequate test results and given her another opportunity to opt for the IOL Master. It is the Plaintiff’s position that there is no evidence supporting the defence argument that Ms. Van Kessel discussed the A-scan results with the Plaintiff the day they were taken, and again in March 2008. To the extent that Dr. Singer’s charts suggest there were further discussions, this is more indicative of Dr. Singer’s unreliable note taking than any actual discussion.

[27] Ms. Van Kessel has no memory of any such discussion. Ms. Van Kessel testified that she would never give medical advice to a patient, would never advise a patient to take one test over another and would never interpret A-scan measurements. Ms. Van Kessel’s notes from October 30, 2007 simply confirm Ms. Ellsworth’s decision to go with the A-scan. There is nothing to suggest she confirmed this with any knowledge of the inadequacy of the A-scan results. The notation from March 2008 was taken after the surgery was rescheduled. This suggests that Dr. Singer’s office was simply confirming that Ms. Singer was ready to proceed after her initial date was cancelled. Dr. Singer was ready to proceed without any further discussion in December 2007, before any alleged further discussion between Ms. Van Kessel and Ms. Ellsworth in March 2008. The surgery date was rescheduled for unrelated reasons. Ms. Van Kessel did not remember having a discussion with Ms. Ellsworth at this time and could provide no further detail in her testimony. Neither the A-scan nor the A-scan results are mentioned in this note. Ms. Ellsworth does not remember anyone discussing the A-scan results with her.

[28] There is no reason why a physician would not have the time to make a phone call to inform Ms. Ellsworth of her inadequate A-scan results. The Defendant did not make this phone call. Although he asserts that his technician reached out to Ms. Ellsworth, this assertion depends on his unreliable notes and cannot be accepted.

(b) The Standard of Care – The Defendant’s Position

[29] The Defendant agrees that the standard of care required Dr. Singer to exercise the diligence, care, knowledge, skill and caution of a normal prudent physician of the same experience and standing. The Defendant argues that he exceeded the standard of care in his treatment of Ms. Ellsworth.

[30] The Defendant’s theory is premised on there being a fundamental distinction between cataract surgery and refractive surgery. The primary goal of cataract surgery is to remove the cataract. The primary goal of refractive surgery is to improve vision. Improving vision is merely an ancillary goal of cataract surgery. The inadequate measurements did not affect Dr. Singer’s prospects of removing the cataract successfully. In addition, the measurements were within the range expected by Dr. Singer.

[31] The Defendant’s expert, Dr. Raymond Stein, testified that variable A-scan results are the norm for myopic patients. He agreed with Dr. Mandelcorn’s recitation of the range of measurements taken during Ms. Ellsworth’s A-scan. Dr. Singer warned Ms. Ellsworth initially that A-scan measurements could vary. The fact that they did in fact vary would have been no surprise to him.

[32] Even though the standard of care did not require him to further discuss the two measurement options with Ms. Ellsworth, he had his best technician, Ms. Van Kessel, reach out to Ms. Ellsworth and give her another opportunity to choose the IOL Master. Dr. Stein testified that Dr. Singer exceeded the standard of care. He testified that he has never heard of an ophthalmologist contacting a patient to give them a second opportunity to choose the IOL Master.

[33] Dr. Stein testified that Dr. Singer’s standard discussion fully canvasses the risks of choosing the A-scan over the IOL Master and, as a result, there would be no need to have any further discussion with the patient once their A-scan results come in as every patient can benefit from the IOL Master. Dr. Stein also testified that physicians cannot require a patient to proceed with a non-insured treatment over a treatment covered by OHIP.

[34] Dr. Stein testified that although a technician such as Ms. Van Kessel could not offer medical advice, she would have been able to inform Ms. Ellsworth that the IOL Master is a more accurate test because that is well known in the literature.

(c) Standard of Care – The Law

[35] To meet the standard of care, a physician must exercise the degree of skill and care which could be reasonably expected of a normal prudent physician of similar experience and standing in similar circumstances: see Crits v. Sylvester, 1956 34 (ON CA), [1956] O.R. 132 (C.A.), and Wilson v. Swanson, 1956 61 (SCC), [1956] S.C.R. 804. The law does not impose a standard of perfection: see Moss v. Zaw, [2009] O.J. No. 1317 (S.C.), at para. 159.

[36] Reasonable physicians in similar circumstances may disagree on the appropriate course of action. As a result, an error in medical judgment does not constitute a breach of the standard of care: see Wilson.

[37] The law requires a physician to disclose all material risks involved in a particular procedure in order for the patient to make an informed decision: see Hopp v. Lepp, 1980 14 (SCC), [1980] 2 S.C.R. 192, Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880 and Videto v. Kennedy (1981), 1981 1948 (ON CA), 33 O.R. (2d) 497 (C.A.). A failure to obtain a patient’s informed consent to a particular procedure constitutes negligence: see Mozersky v. Cushman, [1997] O.J. No. 4912 (Gen. Div.).

(d) Standard of Care – Analysis

[38] Dr. Singer had no independent recollection of his interaction with Ms. Ellsworth on October 17, 2007, the date of her initial consultation with him. There is no dispute that Dr. Singer offered Ms. Ellsworth both the A-scan method and the IOL Master method. It is also not disputed that Dr. Singer informed Ms. Ellsworth that there would be an additional cost if she chose to use the IOL Master. There were also discussions relating to upgraded lenses, which Ms. Ellsworth opted for at an additional personal cost. It is also undisputed that Ms. Ellsworth chose the A-scan measurement.

[39] It is also not disputed that the eye exam conducted by Dr. Singer on October 17, 2007 revealed that Ms. Ellsworth had central posterior subcapsular cataracts in both eyes which Dr. Singer described as moderate, with the right eye cataract greater than the left. She was a candidate for surgical treatment of the cataracts and she wished to proceed.

[40] Dr. Singer testified in-chief that although he could not remember his exact conversation with Ms. Ellsworth about the A-scan and IOL Master, he would have employed a standard description of the choice of measurement that he uses with all patients. That standard description is as follows:

At the time I would mention that we have two ways currently available of doing those measurements to help us order the lens that would suit her eye the best, and I’d do [go]into a detailed discussion regarding Ascan ultrasonic measurement, and I would have said, we do that in our office here with my technicians, and upon mentioning that I would say, this is covered by OHIP but approximately 50 to 60 percent accurate. And then I would say, we have an entirely optional upgrade to laser measurement, specifically, the IOLMaster. And at that time, I would have mentioned that this is the latest technology but, unfortunately, not covered by our health plan And rather than 50 to 60 percent accuracy that we achieve with Ascan ultrasonic measurement, the laser measurement is over 95 percent accurate. And at that time, I would have mentioned that the, the test is optional, uninsured, at a cost of $200.00 for both eyes. And at that time, I would have made reference to her myopia, peripapillary atrophy, irregular shape of the eye, and the inherent challenges faces with ultrasonic measurement of her myopic eye. And rather than the 50 to 60 percent, I said the laser measurement at over 95 percent is far more accurate. Then I tell patients the $200.00 is picked up by a lot of drug plans, and failing that, it’s a medical deduction on income tax. Then I look over to the patient to make sure that they appear to understand it and encourage questions.

[41] With respect to Ms. Ellsworth’s myopia, Dr. Singer testified as follows:

Well, the fact that it was identified, the fact that it was charted, tells me that it was a significant finding, and a finding that would be communicated to the patient, and the communication would go along the lines of, your myopia can produce challenges in terms of measuring your eye, and the ultrasound method, at 50 to 60 percent accuracy, is not the ideal measurement that we would normally expect to give freedom from spectacle correction, and that the IOLMaster, unfortunately at a cost, would be significantly better in this clinical scenario

[42] Regarding the initial appointment with Dr. Singer, Ms. Ellsworth testified that she remembered the following details:

• She went to the appointment alone;

• The first person she spoke with was the receptionist at the front desk, who asked her to fill out various forms;

• She was then escorted into an examination room and her patient chart was placed in front of her;

• Dr. Singer entered the room and examined her eyes;

• He confirmed that she had cataracts and explained that he was a cataract surgeon;

• He then told her the following:

o To treat her cataracts, the natural lens in her eye would be removed and a prescription lens would be inserted;

o The postoperative goal was for her to have “perfect driving vision without correction, with the exception of a drugstore reader”;

o Her eyes would have to be measured and there were two measurement methods available: the A-scan and the IOL Master;

o The A-scan has been used for “many, many years and was proven to be effective” but the IOL Master was “a more recent technology”;

o The A-scan was covered by OHIP but the IOL Master was not;

• She was offered an upgraded IOL;

• She was told that the upgraded IOL was superior because it cuts down on night glare and reflections while driving; and

• She was told that the upgraded lens was not covered by OHIP.

[43] Ms. Ellsworth’s testimony about what Dr. Singer told her about the IOL Master was that “the most I got from that was that it was just a more updated, more modern way of measurement” and “It was a new technology that was used, he had used the ultrasound for years.” She testified that Dr. Singer did not make any recommendations to her as to which of the two methods of measurement he thought would be better for her, nor did he tell her that because of her myopia she would be better off having her eyes measured using the IOL Master.

[44] The A-scan testing was done on October 30, 2007. It is uncontroverted that Dr. Singer was not present when the testing was done. Ms. Ellsworth and Ms. Van Kessel each testified as to what occurred that day.

[45] Ms. Van Kessel testified that she was the most senior of Dr. Singer’s technicians in 2007. She did not have any specific recollection of her interactions with Ms. Ellsworth. Based on the chart, she testified that she did 50 to 60 A-scan measurements on each eye. There are ten measurements per test. She testified that all three technicians were involved in taking the measurements of Ms. Ellsworth “Because the protocol that we have in that office with Dr. Singer that if we are unable to use the regular measurement and had to change it to dense and long, to dense and long we need to get more measurements.” Dense and long is a different program on the ultrasound machine. They start with the regular program and adjust the gain “to get through the cataract.” They could not get any measurements for Ms. Ellsworth with the regular program. Ms. Van Kessel wrote a note dated October 30, 2007 in the chart that read “had to use dense/long on R E [right eye] difficult to do.” She testified “difficult to do” meant that she had difficulty getting the measurements on the regular program on the ultrasound and had to use the dense and long program which she said is “not the most common but we do use it.” Ms. Van Kessel also wrote a note dated the same day stating “wants upgraded IOL but can’t afford IOL Master.” She testified that this note told her they talked about the upgraded implant and the IOL Master but she had no recollection of the conversation. Ms. Van Kessel also testified that she made two other notes in the chart, one stating “DOD March 18” and another on the same date stating “wants upgrade IQ lens but does not want to pay for IOL Master.” She testified that “DOD” means the date of the decision by the patient to have the surgery. She testified that she has no recollection of having any discussion with Ms. Ellsworth on the date those notes were written. She said the notes told her they again discussed the upgraded IQ lens and the IOL Master.

[46] Ms. Van Kessel testified about the two marks made next to her March 18 notes, a “?” and “OK✔”. She testified that these marks were made by Dr. Singer and that this would mean he read the note and questioned it. Typically he would come to ask her about notes he had questions about. She had no recollection of any such discussion.

[47] Ms. Ellsworth testified about the day of the measurements. Ms. Ellsworth recalls that it took several attempts for the technician to get the measurements. The technician had particular difficulty with the left eye and excused herself to get the help of another technician. She described numerous attempts. The technicians did not express to her any concerns about the accuracy or the sufficiency of the measurements they took. She said she had no recollection of having any discussion with the technician about her financial situation on October 30, 2007. She said it was “unlikely” they had that discussion. She did not believe they had. She thought it was “very possible” that the note was fabricated.

[48] As for the note dated March 18, 2008, Ms. Ellsworth said she could recall having any discussion with Ms. Van Kessel about the IOL Master in March 2008. The measurements were taken by the A-scan. There was no subsequent discussion about the IOL Master. She had no explanation for the March 18, 2008 note. She said it was not possible that she had either of the discussions referenced in Ms. Van Kessel’s notes.

[49] In my view, it is not necessary for me to resolve the conflict between Dr. Singer’s and Ms. Ellsworth’s evidence as to their discussion about the A-scan and the IOL Master on October 17, 2007. In my view, the situation changed after the A-scan measurements were taken. For the reasons that follow, even if Dr. Singer told Ms. Ellsworth exactly what he says he did, the standard of care required him to provide Ms. Ellsworth with an opportunity to reconsider her choice of the A-scan after the A-scan measurements were taken.

[50] First, I will review the evidence of Dr. Mark Mandelcorn, the Plaintiff’s expert on the standard of care. Second, I will review the evidence of Dr. Raymond Stein, the defence’s expert on the standard of care. Third, I will explain why I prefer and accept the evidence of Dr. Mandelcorn over that of Dr. Stein. Fourth, I will address specific issues the defence has raised with respect to Dr. Mandelcorn’s evidence.

[51] Dr. Mandelcorn has been an ophthalmologist since 1973. For approximately 30 years, until about ten years ago, he was involved in primary cataract surgery, mostly to help train Medical Residents. Throughout those 30 years he also dealt, as a retina specialist, with complications from cataract surgery. He has a 30 year background both in primary cataract surgery and in complications that arise from cataract surgery and the management thereof. In the last ten years he has not done primary cataract surgery but has continued to deal with complications arising from cataract surgery. Complications arising from cataract surgery account for about 30 percent of his current retinal surgery practice.

[52] Dr. Mandelcorn testified that a cataract is when the transparent lens of the eye becomes progressively more opaque. Cataract surgery involves the removal of the opaque lens and the substitution of an artificial transparent lens. The determination of the power of the artificial implant to be put into the eye is made up of at least three measurements of the eye itself – one of which is the measurement of the length of the eye from front to back, which is called the axial length. Dr. Mandelcorn described this as the most important measurement in determining the appropriate lens power. The measurements are put in a formula and the formula provides the power of the implant needed to achieve good vision in the distance without the need for spectacles. The formula generates the implant power. The formula shows that for every millimetre that the measurement is incorrect there will be a 2.5 diopter difference in the implant power of the lens. A diopter is a unit of the focussing ability of an optical device. With a myopic eye it is important to measure right along the axial plane because a myopic eye has an egg-like shape with a much longer axis which increases the risk of measurement error.

[53] There are two ways of measuring the axial length of an eye – one by ultrasound (the A-scan) and one by laser (the IOL Master). The IOL Master is the more reliable and accurate method.

[54] Dr. Mandelcorn testified that patients and doctors expect to be accurate with their implant power selection to the level of half of a diopter or less.

[55] Dr. Mandelcorn concluded that Ms. Ellsworth’s A-scan results provided a wide range of possible implant powers and that the implant power that would have provided Ms. Ellsworth with the result she expected was not used in either eye. This was based on the following:

1. On October 30, 2007 six sets of ultrasound measurements were taken of Ms. Ellsworth’s eyes. Dr. Mandelcorn described this number as more than usual. He said usually one is done, then a second and maybe a third and if they are similar or the same this is enough to move forward.

2. Dr. Mandelcorn summarized the six tests that were done on a chart filed as Exhibit 21. “SRK-T” and “Holladay” are two formulas used to link the measurements to the power of the implant. The testing done for the right eye gave a range of axial lengths between 25.71 and 27.35 millimeters, or a difference of 1.64 millimeters. This means that if the doctor inserted a lens corresponding to one end of the measurements but the correct lens corresponded to the other end of the measurements the lens would be four to five diopters off. The axial lengths for the left eye ranged from 26.22 to 27.89, a difference of 1.67 millimeters. These measurements generated a 4.64 diopter range in the corresponding implant power. Dr. Mandelcorn said typically the doctor does not see any variance in A-scan results, maybe one resulting in a quarter of a diopter range, but “you certainly wouldn’t see five diopters.”

3. Dr. Mandelcorn testified that a one diopter difference in the implant power would make a big difference to the patient’s lifestyle and a four diopter difference would make a big difference in the patient’s functioning.

4. The extreme variance in Ms. Ellsworth’s A-scan results is too large to permit an ophthalmologist to choose with any degree of certainty the implant that will correct the patient’s eyesight. He described a four diopter difference as a “huge range.”

[56] Specifically, with respect to the standard of care, Dr. Mandelcorn was asked his opinion of what a prudent ophthalmologist should do when confronted with this wide range of axial lengths:

I think that the prudent ophthalmologist would recognize that there is a problem and that there – that he should consider what solutions there could be to this problem. Look around for other ways of making a more accurate measurement. And let’s say there was nothing available unless there was only the ultrasound then you would have to tell the patient, we’re getting numbers that make this difficult to be precise about your implant.

Sorry. Yeah, it makes it difficult for me to be precise about the power of the implant. You will have to be prepared for the possibility that you may have to wear glasses or that you might not achieve the sight, the eyesight that you were hoping to achieve from what I’m doing for you.

[57] Dr. Mandelcorn testified that if the IOL Master was available, a prudent ophthalmologist should have done the following:

I think that discussion had to take place and the alternative technique had to be described and the benefits of it described. And the doctor’s own recommendation about what would be in the patient’s best interest, that had to be discussed. And in this case ....

Sorry. In this case, given the very wide range of numbers the doctor should have – could have made a strong recommendation to go and have the IOL Master measurement take.

[58] Dr. Mandelcorn testified that it would be “imprudent” for an ophthalmologist not to have a further discussion with the patient in these circumstances:

That certainly would have been an imprudent position to take as the doctor looking out for the patient’s best interest. Keep in mind that the doctor, is just under the obligation of outlining the risks and benefits of the alternative measurement technique.

No, he’s – no, excuse me, he is under an obligation just to discuss the risk and the benefits and then to maybe give her his strongest recommendation what to do. And after all that discussion has taken place with the risks and benefits the patient in an autonomous way makes her own decision.

[59] He testified that discussions of the relevant risks should have been had between the doctor and the patient both before and after the ultrasound measurements were taken.

[60] Dr. Mandelcorn testified that the result was that Dr. Singer under-corrected Ms. Ellsworth’s right eye by plus three diopters and her left eye by plus four. He said “it’s impossible, you can’t be accurate, it’s a bit of a guess” regarding trying to choose a proper lens power from the broad range of axial length measurements taken of Ms. Ellsworth’s eyes on October 30, 2007, and that a guess is not satisfactory. Dr. Mandelcorn testified that an IOL Master produces “very precise implant predictions.”

[61] In conclusion, Dr. Mandelcorn testified that, given the almost five diopter range generated by the axial measurements taken by the A-scan of Ms. Ellsworth, and given that neither the patient nor the doctor would expect an error of more than half a diopter after the operation, the range produced by the A-scan of Ms. Ellsworth puts “you way out of the range of expected outcomes”. Dr. Singer should have known this and discussed it with Ms. Ellsworth. Dr. Mandelcorn, in cross-examination, said the following with respect to what patients need to know:

They have to know what the consequences of, of the wrong power of the implant would be. For them a number of 12, or 13, or 14 has no meaning, someone has to explain to them what those numbers translate into in terms of functioning in everyday life.

[62] Dr. Stein testified as an expert as on the standard of care for the defence. Dr. Stein has been an ophthalmologist since 1987. He testified that he spends about half his professional time doing cataract surgery and half doing refractive procedures. This was the situation in 2007 as well as in 2015. In 2007, he was, and still is, Chief of Ophthalmology at Scarborough Hospital. His duties include teaching at the hospital.

[63] With respect to the standard of care, Dr. Stein testified as follows:

After viewing all the documents and having a good understanding of clinical practice in the standard of care in Ontario and Canada and United States, Dr. Singer exceeded the standard of care in all regards with informed consent, the surgical procedure and offering the patient a variety of options because she was unhappy postoperatively.

[64] Dr. Stein described the goal of cataract surgery as follows:

In Ontario and even in North America the goal is to improve what we call best correct vision. And that is following cataract surgery, the majority of patients today need glasses, may need glasses. Why do they need glasses for distance vision? Because even with the IOL Master and even with the latest edition from 2007, the IOL Master has undergone significant changes, but even in 2015 patients, the majority of time, need a thin pair of glasses for distance vision. So I think it’s very important, Your Honour, to understand that cataract surgery is....

It’s very important to understand that cataract surgery is done today so that afterwards patients hopefully see better with a pair of glasses. The other area is called refractive surgery where the goal is to be spectacle free whether it be for distance or distance and reading but cataract surgery in the Province of Ontario, the goal is simply to improve the vision.

The goal is to improve best corrected vision and what that means is that prior to surgery when the patient is looking through their glasses and there are many patients here wearing glasses or contact lenses that they’re not seeing great. Now, that could be they can only see the big ‘E’ or in some patients that have a visually demanding lifestyle they can only see one line above the 20/20 and it’s believed that it’s the cataract responsible for that decrease in vision.

So surgery is done when it interferes with the patient’s activities of daily living. They may not be able to drive safely even though they may qualify based on the visual standards in Ontario. They may not be able to use a computer to function normally so everyone is a little different in terms of indications for surgery. A farmer may be different than an accountant or a lawyer.

So when surgery is done the goal is to get the patient into a new pair of glasses and they function well. It’s not to be glass or contact lens free, that’s refractive surgery. Most of my patients today following cataract surgery require glasses, they almost all require them for reading unless the....

Now, almost all my patients need glasses for reading following surgery unless the intention was to give them just reading vision but a high percentage of patients require glasses for distance vision. Sometimes they have a stigmatism but as good as the A-scans are today, as good as the IOL Master is today, there’s still a very high percentage of patients require glasses for distance.

[65] Dr. Stein said that in 2007, the A-scan really reflected the standard of care because it was the only service covered by the Ministry of Health. Dr. Mandelcorn was in agreement with this. The issue is not whether it was the standard to use the A-scan. The issue is whether, given the measurements it generated for Ms. Ellsworth, Dr. Singer should have had further discussions with her regarding her choice of measurement. The issue in the case before me is informed consent, not the sufficiency of the A-scan technology in and of itself.

[66] Dr. Stein agreed with Dr. Mandelcorn that, given Ms. Ellsworth’s myopia (a very long eye), the A-scan reading is more likely to be off. He testified that most patients in 2007, even with the IOL Master, even those with a normal shaped eye, required glasses after surgery.

[67] In terms of the discussion between Dr. Singer and Ms. Ellsworth, Dr. Stein testified as follows:

Yes, I had an opportunity to review the discovery notes of Dr. Singer...

Who went into great detail as to his standard protocol which is an informed discussion of the most common severe risks, including infection and bleeding, and an informed discussion about IOL choices, including the Alcon IQ lens, and a discussion of the A-scan versus IOL Master.

[68] Dr. Stein said the following in conclusion with respect to the standard of care:

This is a very informative discussion and in my own clinical practice this is similar to what I do and it’s one discussion of A-scan versus IOL Master because we know that a 100 percent of patients can benefit from IOL Master. It’s a more accurate test but you have to....

So the IOL Master is a more accurate test in 100 percent of eyes, not only patients that are highly nearsighted and this was brought up in Dr. Singer’s discussion that there’s a greater error, but there’s an error, as well for normal shaped eyes. And so, in my estimation Dr. Singer fully met the standard of care by offering this technology which in 2007 50 percent of his colleagues didn’t even offer it because they didn’t have this advanced technology.

[69] Dr. Stein specifically testified about Ms. Ellsworth’s A-scan measurement results as follows:

Well, it’s not uncommon to have A-scan results being quite variable and certainly a little greater chance if someone’s highly nearsighted or highly farsighted. This is one of the inherent problems with A-scan measurements is that there are errors in measurement. But the errors do not translate into intraoperative complications. They don’t make the cataract more difficult to remove.

All it means is instead of patients potentially wearing no glasses for distance which most people in 2007 they require glasses, it just makes a greater likelihood of requiring glasses, but that doesn’t make a surgical procedure unsuccessful.

Most practices offer the patient A-scan or an IOL Master at the time of the discussion with the Doctor, and that’s what Dr. Singer did. It is very rare and I haven’t experienced this in my own practice in 30 years, to then offer the patient again the opportunity for an IOL Master. Why? Because a 100 percent of patients can benefit from an IOL Master and that’s why we inform them at the time, and a very high percentage of patients with A-scans need relatively thick glasses. Now, Mrs. Ellsworth did not require really thick glasses. Plus .75 and plus 2 is not a huge refractive error

Dr. Mandelcorn is not involved with doing A-scans in his office nor IOL Master measurements. From a practical clinical side it is not required to tell the patient, that to have a further discussion about A-scan versus IOL Master because we know 100 percent of patients would benefit from IOL Master and that’s why the discussion by Dr. Singer at the beginning was the appropriate one.

[70] Having carefully considered the evidence of both Dr. Stein and Dr. Mandelcorn, I prefer and accept the evidence of Dr. Mandelcorn over Dr. Stein’s on the issue of the standard of care, specifically, whether a further discussion should have occurred between Dr. Singer and Ms. Ellsworth following the A-scan measurements and what the contents of that discussion should have included. The following is a summary of my reasons for preferring Dr. Mandelcorn’s evidence on this issue and I will expand on each reason below:

i. Dr. Stein’s evidence is inconsistent with Dr. Singer’s own evidence.

ii. Dr. Stein’s evidence is inconsistent with Ms. Van Kessel’s evidence.

iii. Dr. Stein never disputed Dr. Mandelcorn’s evidence on the range of diopters that Ms. Ellsworth’s A-scan measurements generated and that the goal is to have significantly less range in choosing the power of the implant.

iv. Dr. Mandelcorn was not challenged in cross-examination about the range of diopters generated by the A-scan measurements or his conclusion that this was far outside the range expected.

v. What Dr. Singer advised Ms. Ellsworth as to the expected outcome of the surgery was no longer accurate as a result of the wide range of the A-scan measurements.

[71] On the first point, Dr. Stein was of the opinion that Ms. Ellsworth’s variable A-scan results were not uncommon and therefore did not require any further discussion between Dr. Singer and Ms. Ellsworth. Assuming for the purposes of this analysis that Dr. Singer had a discussion with Ms. Ellsworth on October 17, 2007 similar to what he described in his testimony in-chief, I find as a fact that the situation changed once Ms. Ellsworth underwent the A-scan testing and her measurements were obtained. Ms. Ellsworth’s A-scan measurements were in fact more problematic than Dr. Singer anticipated, contrary to Dr. Stein’s opinion. The following is an excerpt from Dr. Singer’s examination for discovery on June 15, 2012, read into evidence by the Plaintiffs’ counsel at trial:

Q. So what then did you conclude based upon the A-Scan results as to the reliability and accuracy of the measurements that you needed in order to choose the correct lens?

A. I found that the measurements varied and were more difficult than usual to interpret. I denoted that by the readings and the amount of ultrasonic tests that were done. So I knew that the staff had difficulty and that I went over very carefully what was done to find the best result under the circumstances.

Q. My question is how reliable though were these readings and how ---

A. As I said, normally they’re about 50 to 60 percent accurate.

Q. Where do you put this one?

A. In the less accurate category.

Q. Then how could you satisfy yourself that you could choose the correct lens?

A. I had difficulties.

Q. Did you ever satisfy yourself that you could choose the correct lens?

A. I made the best of what was offered to me by the patient.

Q. Well, were you satisfied that that was ---

A. I made the best I could do under the circumstances.

Q. But were you satisfied that that was going to give you the most accurate reading necessary to calculate the proper power of the lens?

A. You don’t know till afterwards how accurate one is, so one does the best under the circumstances. I would have preferred to have a more accurate measurement, but that wasn’t offered to us by the patient.

Q. Well, did you have a direct and specific discussion with Ms. Ellsworth after the A-Scan examinations but before the surgery?

A. I don’t recall.

Q. Is there anything in your notes that would suggest that you had those discussions?

A. Not in my notes.

[72] Dr. Singer found the measurements more difficult than usual to interpret. This is consistent with Dr. Mandelcorn’s evidence that the measurements taken with the A-scan lacked the expected consistency or similarity. Dr. Singer’s evidence is inconsistent with Dr. Stein’s evidence. According to his own evidence, these measurements were unusually difficult to interpret. Dr. Singer acknowledged he had difficulties satisfying himself that he could choose the correct lens.

[73] This is reinforced by Dr. Singer’s evidence in-chief at the trial concerning the March 18, 2008 note made in the chart by Ms. Van Kessel. Dr. Singer acknowledged he wrote the “?” beside the note and later wrote the “Ok” and made a check mark. He explained what occurred as follows:

A. Yes. This was placed on my desk for perusal, I believe, by Wendy, and I read it over and I circled her words that came out of her discussion with Ms. Ellsworth regarding proceeding and booking, and I circled it and I put a question mark there, and I put it back in Wendy’s file to be reviewed, in other words, I wished a further discussion with Wendy regarding what she has written.

Q. So just pausing there, the significance of the circle and the question mark is therefore what, what are you signifying by that?

A. I’m concerned about the, her choices. I want to make sure that she’s made an informed decision, and I wish to discuss with Wendy to verify what Ms. Ellsworth really wishes to choose as an upgraded approach. So this was to bring about a further discussion with Wendy, and if you like, double check how we proceed from here, ensure myself that there’s been an adequate further discussion with Ms. Ellsworth regarding her choices.

Q. And did you in fact speak with Wendy?

A. Yes. She brought this back to me and she reiterated Ms. Ellsworth choice that she didn’t want to pay for the upgraded IOLMaster, and to satisfy my questions, I wrote, “Okay.” In other words, Okay. We’ve had the discussion, and the checkmark was to indicate, let’s proceed.

Q. And do you have a recollection of that?

A. No, not a specific recollection. However, I can certainly surmise what went on. This is what we do on a day-to-day basis, leave notes, follow up with conversation, chart that the conversation’s been made, and chart where we go from there.

Q. And what is it that you were satisfied with you wrote, “Okay” and put the checkmark on the chart?

A. I was satisfied that Ms. Ellsworth knew that there were two optional upgrades, that she knew that the Ascan was 50 to 60 percent accurate, that she knew there was an optional $200.00 upgrade for a more accurate measurement.

THE COURT: Sorry, $200.00 upgrade?

A. $200.00, one fee for both eyes, for the more accurate laser measurement. So knowing Wendy, who’s very precise, accurate, well trained, in particular, I knew that there was a full discussion regarding options and choices.

[74] Dr. Singer was concerned about Ms. Ellsworth’s choices. He wanted to ensure that she had made an informed decision. He wanted to “double check” to ensure there was an “adequate further discussion”. The only event that occurred between his initial consultation with Ms. Ellsworth on October 17, 2007 and March 18, 2008 was the A-scan measurements. He was concerned about them. He wanted to be certain that an adequate further discussion had taken place with Ms. Ellsworth. This is entirely consistent with Dr. Mandelcorn’s concerns and not at all consistent with Dr. Stein’s testimony.

[75] Dr. Singer had a duty to discuss these concerns with Ms. Ellsworth. He could not delegate this to Ms. Van Kessel. He had concerns about whether Ms. Ellsworth had given an informed medical consent given the unexpected variance in her A-scan measurements. It was his duty to discuss this with her.

[76] This is particularly so when Ms. Van Kessel’s evidence was crystal clear concerning the following:

i. She was not qualified to give the patient any medical advice about any issue.

ii. She would not give advice to a patient about what test they should or should not take, or advise a patient to take one test over another.

iii. She would never presume to interpret the results of a test for a patient.

[77] Ms. Van Kessel could not recall her conversation with Ms. Ellsworth on March 18, 2008. Her note in the chart does not say she had a discussion with the patient. In any event, she would not, by her own evidence, have told Ms. Ellsworth that she had a concern with the A-scan measurements nor would she have recommended the IOL Master given the measurements taken and the desired goal of the surgery. Ms. Van Kessel did not have this type of discussion nor was she qualified to do so. Dr. Singer should not have assumed whatever discussion Ms. Van Kessel had with Ms. Ellsworth ensured informed consent.

[78] That Dr. Singer found Ms. Ellsworth’s A-scan results to be more difficult to interpret than normal (consistent with Dr. Mandelcorn’s evidence, inconsistent with Dr. Stein’s evidence) was also apparent in the cross-examination of Dr. Singer,

Q. Well Doctor, this was different than most A-scans because you’ve already said that you found that measurements varied and were more difficult than usual to interpret. This wasn’t a normal run of the mill A-scan, this was one that was more difficult than usual to interpret; right?

A. Yes.

Q. And you knew that these results were difficult to interpret more so than usual; right?

A. Yes.

[79] I find that the A-scan results were outside of the range of measurements expected by Dr. Singer when he had his discussions with Ms. Ellsworth on October 17, 2007. I find that the standard of care required him to discuss those results with Ms. Ellsworth to maintain her informed consent.

[80] While a doctor has a duty to disclose relevant risks, this duty can be satisfied by a resident or intern: see Haughian v. Paine (1986), 1986 CarswellSask 184 (Sask. Q.B.); rev’d on other grounds, 1987 CarswellSask 337 (Sask. C.A.); leave to appeal refused, [1987] 6 W.W.W. R. 1ix (S.C.C.). Ms. Van Kessel is not a resident nor an intern. Further, Ms. Van Kessel’s evidence confirms that she would not have disclosed the risk of proceeding because she would not have interpreted the A-scan results.

[81] Dr. Stein’s evidence is also inconsistent with Ms. Van Kessel’s testimony. He made an assumption about the nature of any discussion Ms. Van Kessel may have had with Ms. Ellsworth on October 30, 2007 and March 18, 2008. As set out above, Ms. Van Kessel had no recollection of her conversations with Ms. Ellsworth. In Dr. Stein’s evidence, both in-chief and in cross, he made assumptions about the discussions Ms. Van Kessel had with Ms. Ellsworth that factored in his opinion on whether Dr. Singer met the standard of care. These assumptions were not borne out by the evidence of Ms. Van Kessel.

[82] Dr. Stein testified to the following in-chief:

Q. I’d like you to assume that that same technician testified that she would not provide medical advice or medical recommendations, but that she would provide information; what is your view on that?

A. Technicians don’t provide medical advice. They relay information from the Doctor and in this case Dr. Singer had advised the patient on suggested IOL Master and the technician basically reiterated Dr. Singer’s wish or desire to do IOL Master which would give her a better refractive outcome, thinner glasses.

[83] Dr. Stein testified to the following in cross:

Q. Except if the physician then has a concern that because of these readings the patient may not have full appreciation of the possible risk so that she has not come to an informed decision. In that case, Doctor, where the physician is concerned about the choice made by then patient like Ms. Ellsworth in this case, it’s incumbent upon the physician to ensure that those concerns are raised with the patient; correct?

A. Dr. Singer was very concerned at the time of the consultation and advised the patient that this was a reasonable option, especially the fact that she was highly nearsighted. He, Dr. Singer, has a well-trained staff that went above and beyond to document in the chart that the patient could not afford the IOL Master. No one would write that in the chart unless they had a proper discussion with the patient.

Q. All right. I’m sorry. So, but I’d like you to respond to that question, that is where there are new fresh concerns that arise in the physician’s mind after the original discussion about the procedure and the risks and the benefits, it is only the sensible and reasonable, and prudent that that physician would bring those concerns to the patient.

A. This is not practical in the real world. Maybe Dr. Mandelcorn felt that that was the case but Dr. Mandelcorn is not a cataract surgeon. He doesn’t do A-scans, he doesn’t do IOL Masters. In a busy clinical practice the Doctor informs the patient at the time of the consultation knowing that the patient’s especially nearsighted and would benefit and educates the staff if there’s any variability that the staff would inform the patient of Dr. Singer’s suggestion but not to push an non-insured surface.

[84] Dr. Singer was concerned about Ms. Ellsworth’s choice of measurement, as he indicated in his testimony, referred to above, concerning his explanation for his marks in the chart around the March 18, 2008 note. Dr. Stein assumed Ms. Van Kessel reiterated Dr. Singer’s wish or desire to re-canvass the benefits of IOL Master testing and the likelihood that it would give her a better refractive outcome. Dr. Stein assumed Ms. Van Kessel had a “proper” discussion with Ms. Ellsworth. Dr. Stein assumed this discussion would respond to the variability in the A-scan measurements. None of these assumptions were correct. Ms. Van Kessel’s evidence was that she has no recollection of having a discussion with Ms. Ellsworth that day. She stated in reference to her note from that day that “The IOL Master was – is new technology that was offered to our patients.” She said she would never presume to advise a patient to take this test over that test. She gave absolutely no evidence that she repeated Dr. Singer’s concerns over the measurements taken to Ms. Ellsworth. There is no evidence that either her note in the chart or her discussion with Ms. Ellsworth were linked in any way to the A-scan measurements taken on October 30, 2007 or the problems in interpreting the same. She never informed Ms. Ellsworth of the advisability of the IOL Master in light of the variability of her A-scan results.

[85] Dr. Singer also made the same incorrect assumption that the A-scan results were discussed by Ms. Van Kessel with Ms. Ellsworth. In cross-examination he testified to this as follows:

Q. And you knew that these results were difficult to interpret more so than usual; right?

A. Yes.

Q. And there would be nothing to prevent you under those circumstances from calling the patient, asking the patient to come into the office to review the results of the A-scan. There would be nothing to prevent you from doing that.

A. That was done by my staff and I delegate my staff to do that.

[86] I have no evidence that any such discussion occurred between Ms. Ellsworth and any member of Dr. Singer’s staff.

[87] The Plaintiff’s counsel suggested in written submissions that I should be concerned that two date references in notes in Ms. Ellsworth’s chart have been changed from March 28 to March 18. In the both notes the “2” has been written over with a “1”. Ms. Van Kessel was asked about this in cross-examination and agreed this raised a concern about the reliability of these notes, how they were recorded and whether they were recorded contemporaneously. This has not affected my decision. Plaintiff’s counsel also suggested that several notes in the record made by Ms. Van Kessel and Dr. Singer are cryptic, unhelpful and lacking in precision and detail. It is not necessary for me to address this concern to decide this case.

[88] I have carefully compared Dr. Mandelcorn’s evidence with the evidence of Dr. Stein and have found that Dr. Stein’s evidence is not responsive to some of the key facts upon which Dr. Mandelcorn rested his opinion regarding the standard of care. This is a further reason why I prefer Dr. Mandelcorn’s evidence on this issue.

[89] Dr. Mandelcorn provided Exhibit 21, a summary of the six sets of A-scan measurements taken on October 30, 2007, and listed the axial length and the IOL power (in diopters) corresponding to each measurement. As is outlined in the summary of his evidence above, he said that “typically” you do not see any variance, although you might see a quarter of a diopter. You certainly would not see five diopters. He said the variance between the extremes (the smallest measurement to the largest) was too large to be able to choose with any degree of certainty the appropriate implant to correct this patient’s vision to normal functioning. He called it a “huge” range. Further, he said doctors expect to be accurate with their implant power selection to the level of a half a diopter or less.

[90] Dr. Stein testified that he did not disagree with the numbers in Exhibit 21. He did not, however, specifically respond to Dr. Mandelcorn’s evidence that six tests were unusual, or that this particular variance was extreme and beyond the range doctors expect to see. Dr. Stein did not disagree with Dr. Mandelcorn’s evidence as to the effect of being off by one diopter on a patient’s functioning. The foundation of Dr. Mandelcorn’s testimony regarding the standard of care and informed consent was that Ms. Ellsworth should have been told that the variance in her A-scan measurements was too big to provide the desired outcome. Dr. Stein never testified that he disagreed with Dr. Mandelcorn’s description of the variance in Ms. Ellsworth’s results or the potential impact of a miscalculation on her eventual functioning. If he disagreed he should have explained his disagreement. If he did not disagree, but nevertheless thought that no further discussion was necessary, he should have explained how this was not an unexpected outcome that needed to be discussed with the patient. Dr. Stein’s evidence in this regard is too general to be of any assistance.

[91] I have already referenced Dr. Stein’s testimony that it is not uncommon to have A-scan results that are “quite variable” and that there is a greater chance of variability if someone is nearsighted or highly farsighted. He testified that there was variability in Ms. Ellsworth’s A-scan results, which was not uncommon. He never specified what an expected or acceptable level of variance is and did not contradict Dr. Mandelcorn’s evidence in this regard. He never testified as to the extent of variability which is expected or appropriate. Dr. Stein’s evidence is that 100 percent of patients would benefit from IOL Master technology so there was no special need for Dr. Singer to have any further discussion with Ms. Ellsworth after the initial discussion on October 17, 2007. It is not possible to reconcile this blanket statement – taken to its logical conclusion Dr. Stein’s evidence would be that no amount of a variance would ever necessitate a further discussion – with the fact that he never disagreed with Dr. Mandelcorn’s evidence that the variance demonstrated by Exhibit 21 was too big and too huge to permit a proper IOL power selection. I agree with Dr. Mandelcorn. Someone had to explain the numbers to Ms. Ellsworth and translate the numbers into terms of everyday functioning. That someone was Dr. Singer.

[92] Dr. Stein’s opinion was that Dr. Singer selected a lens power that was very close to what Ms. Ellsworth actually needed. I will have more to say about this below under causation. In relation to the standard of care, even if Dr. Singer happened to choose the correct lens power, if the variance in the measurements was unexpectedly big and this could have had an impact on lens selection and post-operative functioning, Ms. Ellsworth should have been advised of this as part of informed consent. The ultimate result of Dr. Stein’s opinion in this regard, to me, is an issue of causation. It does not change the applicable standard of care.

[93] Dr. Stein’s conclusions are based on his statement that “A very high percentage of patients have variable results in A-scan measurements” so there was nothing further to review with Ms. Ellsworth once her results were known. Yet he never disagreed with Dr. Mandelcorn’s core evidence as to the huge variance in this case nor did he offer any opinion on the magnitude of the variance.

[94] In cross-examination, Dr. Stein was questioned at length about why he did not comment on Dr. Mandelcorn’s opinion regarding the standard of care in his initial report dated April 14, 2011. Dr. Stein acknowledged that he did not and said that was because in 2007 the IOL Master did not give perfect results and because Dr. Mandelcorn is a retina specialist who does not perform primary cataract surgery and has no ongoing clinical basis for doing IOL Master or A-scan testing. I will have more to say about their respective qualifications later on in these Reasons. At this point, I simply add that Dr. Stein disagreed with Dr. Mandelcorn’s opinion yet did not specifically disagree with the foundation it was built on. When he did address why he disagreed with Dr. Mandelcorn’s opinion on the standard of care, the essence of his reason for disagreeing with him was that “all patients can benefit from the IOL Master and therefore no further discussion with Ms. Ellsworth was required after her A-scan measurements.” In my view, this is not responsive to the underpinnings of Dr. Mandelcorn’s opinion.

[95] A careful review of the cross-examination of Dr. Mandelcorn reveals that the foundations of his opinion – his opinion on the range that an ophthalmologist needs to see in order to accurately select the appropriate lens power, and his description of the difference a diopter can make in patient functioning and the magnitude and significance of the range of Ms. Ellsworth’s measurements – were not tested or challenged. These are the foundations of his opinion that a prudent ophthalmologist would have had a further discussion with Ms. Ellsworth with respect to the available measurement options and the likelihood of her expected outcome.

[96] A further factor that leads me to prefer Dr. Mandelcorn’s evidence over Dr. Stein’s is that Dr. Stein’s opinion is premised upon Ms. Ellsworth having had a different expectation from the surgery than what she was told by Dr. Singer during her initial consultation. Simply put, Dr. Stein was of the view that no further discussion was needed because the A-scan results did not change anything. Every patient could benefit from the IOL Master. That was true before and after her A-scan testing. He testified that even with cataract surgery the majority of patients need glasses. He said that, even in 2015 with improvements in the IOL Master technology, the majority of the time patients need a thin pair of glasses for distance. He said, specifically, “a high percentage” of patients require glasses for distance vision postoperatively. Further, almost all patients require glasses for reading. This is inconsistent with Dr. Singer’s testimony regarding the expected outcome of Ms. Ellsworth’s surgery and therefore different from what Ms. Ellsworth was told during her initial meeting with Dr. Singer.

[97] Dr. Singer testified in-chief that he would have told Ms. Ellsworth that one of the goals of the cataract surgery was to give her independence from having to wear glasses for day to day activities – she would have the ability to drive, go shopping, go to the doctor, or visit a relative without glasses. He said he would have told her that she could expect to require glasses for particularly fine vision and for reading. He further testified he would not have told Ms. Ellsworth the expected outcome was “perfect driving vision”, but he would have described it as something like “getting around vision”, adequate enough to perform a lot of daily tasks including driving without glasses. He said he would have avoided the word “perfect”.

[98] I find what Dr. Singer testified he would have told Ms. Ellsworth to be fundamentally different from what Dr. Stein assumed she would have been told and that this is related to Dr. Stein’s opinion that a further discussion was not required to meet the standard of care to obtain informed consent. Ms. Ellsworth would have understood, based on what Dr. Singer told her, that following the surgery she would be glasses-free for day to day activities, including driving, with maybe a continuing need for glasses for particularly fine vision and definitely for reading. Ms. Ellsworth described this outcome as “perfect driving vision.” In my view, nothing turns on the word “perfect”. As Dr. Singer himself testified, “perfect is in the eye of the beholder.” Perfect to Ms. Ellsworth could have meant driving without glasses, which is entirely consistent with Dr. Singer’s testimony about what he would have told her to expect. Dr. Stein’s evidence assumed Ms. Ellsworth would have already known from the first consultation that she should expect to require glasses for distance and reading and therefore no further discussion was required after her variable A-scan measurements made choosing the correct lens more difficult. This assumption was incorrect. The A-scan results made it more problematic for Dr. Singer to achieve the expected outcome, as he had explained it to Ms. Ellsworth, and, in my view, he had to tell her this. Dr. Stein’s evidence incorrectly assumes Ms. Ellsworth knew she would need glasses for both distance and reading right from the outset.

[99] Dr. Stein’s opinion that 100 percent of patients can benefit from the IOL Master and therefore that one discussion at the outset is adequate in my view misses the mark on these facts. Ms. Ellsworth was told to expect a certain outcome that differed from what Dr. Stein assumed she would have been told. The test results made achieving that outcome problematic and she should have been advised of this. The likelihood of achieving her expected outcome changed with the arrival of her variable measurements.

[100] Dr. Mandelcorn’s assumption about the goal of the cataract surgery for Ms. Ellsworth and what she would have understood from the initial consultation is entirely consistent with Dr. Singer’s evidence and Ms. Ellsworth’s evidence if I assume that to her perfect driving vision meant the ability to drive without glasses. Dr. Mandelcorn testified that an ophthalmologist takes the measurements, puts the numbers in a formula and the formula provides the power of the implant needed “to achieve good vision in the distance without the need for spectacles”. In cross-examination, he acknowledged that after cataract surgery it is likely, “it’s expected” that patients will continue to need reading glasses if the goal is to have perfect distance vision without glasses. This was the premise for his testimony that a further discussion should have taken place between Dr. Singer and Ms. Ellsworth after the A-scan results were obtained. Dr. Mandelcorn’s opinion was that Ms. Ellsworth had to be given a strong recommendation to have the IOL Master testing and that she needed to be told that she might not be able to achieve the eyesight she was expecting to achieve without this. The A-scan measurements changed the possibility of Dr. Singer achieving the outcome he had conveyed to Ms. Ellsworth. Dr. Stein’s evidence did not reflect the actual expectation that had been conveyed to Ms. Ellsworth in her initial meeting with Dr. Singer. Dr. Mandelcorn’s evidence did.

[101] I now turn to specific issues raised by the defence in the cross-examination of Dr. Mandelcorn and in the defence submissions concerning Dr. Mandelcorn’s evidence. I do not purport to deal with every issue but only those that in my view warrant comment.

[102] It is clear that Dr. Mandelcorn is an ophthalmologist with a primary interest in diseases affecting the retina and the vitreous – the back portion of the eye. He is a vitreo-retinal surgeon. His is a subspecialty of ophthalmology. The defence argues this is one reason why I should prefer the evidence of Dr. Stein on the standard of care. I disagree. This requires several responses.

[103] First, I am satisfied notwithstanding that Dr. Mandelcorn is a retinal specialist that he has had significant and sufficient experience with cataract surgery to opine on the issues he did and that this is not a basis to prefer the evidence of Dr. Stein.

[104] Until ten years ago, Dr. Mandelcorn performed primary cataract surgeries on patients and had done so for 30 years. These were primary, uncomplicated, straightforward cataract surgeries. Over the same 30 year period and continuing until today, a forty year history, he has, as a retinal specialist, dealt with the complications of cataract surgery. He stopped performing primary cataract surgery because the hospital where he worked made it impossible for retinal specialists to perform primary cataract surgery due to budget issues. In-chief, he said 30 percent of his current surgical practice involves the repair of cataract complications. In cross-examination, Dr. Mandelcorn testified that in 2007 he did 13 or 14 procedures a week and that anywhere between 10 and 30 percent dealt with complications of cataract surgery and that the complications typically relate to the vitreous. He did not perform primary cataract surgery in 2006 or 2007 and acknowledged that in 2005 primary cataract surgery was not a significant part of his practice.

[105] Dr. Stein was in 2007 and is today Chief of Ophthalmology at Scarborough Hospital and performs surgery at the Bochner Eye Institute (“Bochner”). He sees patients one day a week at Bochner and does surgeries there four days a week. He testified that half the time he does cataract surgery and half the time he performs refractive surgery. He estimated that over his career he has done 2,000 cataract procedures a year and over 50,000 in total. He has focussed professionally on cataract surgery and was doing primary cataract surgery in 2007.

[106] In my opinion, the difference between Dr. Mandelcorn’s experience and Dr. Stein’s experience is neither alone, nor together with the other arguments made by the defence which I will deal with below, sufficient to prefer Dr. Stein’s evidence over Dr. Mandelcorn’s. Dr. Mandelcorn’s 30 years of performing primary cataract surgery provided a sufficient basis for his evidence and I found Dr. Stein’s evidence to be problematic in the areas I outlined in detail above. The fact that Dr. Mandelcorn was not performing cataract surgery in 2007 did not erase his 30 years of experience.

[107] Second, the defence argued that Dr. Mandelcorn could not opine on the standard of care regarding informed consent for cataract surgery not only because he was not performing cataract surgery in 2007 but also because the IOL Master was not available in the hospital where and when Dr. Mandelcorn performed primary cataract surgery. He confirmed that he was not having informed consent discussions with cataract surgery patients in 2007 and comparing the A-scan to the IOL Master. Dr. Stein was having these discussions. The defence argued that for these reasons, Dr. Stein’s evidence should be preferred. The defence further argued that Dr. Mandelcorn’s evidence could not set the standard of care for these discussions because his evidence was based on speculation and not his actual experiences. I disagree with the defence in this regard for several reasons.

[108] Most significantly I agree with Dr. Mandelcorn that the standard of care for informed discussions of alternative surgical procedures and their associated risks and benefits cannot be parsed between retinal patients and cataract patients in the way the defence suggests. Dr. Mandelcorn had informed consent discussions with primary cataract patients until 2005 and with cataract repair patients to the present. He has had informed consent discussions with retinal surgery patients throughout his career. He knows what is key to informed consent. Although the IOL Master was not available at his hospital in 2007, his knowledge of the technology and its risks and benefits was not questioned, nor was his evidence on Ms. Ellsworth’s A-scan results as outlined above. The essence of Dr. Mandelcorn’s testimony on the standard of care was that Ms. Ellsworth was told she would have good distance vision without glasses. Her A-scan results made this expectation less likely. Dr. Singer should have met with her again and recommended the IOL Master to her given her problematic A-scan results. He should have told her that if she decided not to use the IOL Master, the expected goal or outcome of her surgery would change. This is common sense. In my view, it is part of informed consent to be advised if the likelihood of the outcome you have been told to expect changes. The fact that Dr. Mandelcorn was not doing primary cataract surgery and did not have an IOL Master at his hospital in 2007 in my view changes nothing. This is so particularly because Dr. Stein’s evidence is at odds with Dr. Singer’s own evidence in the ways I have outlined above.

[109] Questions were put to Dr. Mandelcorn in cross-examination specifically on this issue which he answered as follows:

Q. And although you may have a view about how those discussions should happen I'm going to suggest to you that your view, because you never did those discussions, your view wouldn't set the standard for those discussions.

A. In a general way we are often discussing alternative surgical procedures with patients and we outline for the patient what are the risks and benefits of each of the options. In a general way that's our job as part of our informed consent discussion with retina patients for example. So as, just as a principal, I feel that I know what has to be spoken about in these discussions. In detail I'm not sure what Dr. Singer discusses or discussed with his patients about the options but it's not foreign to me to know about discussing, discussing alternative - alternative options for treatment or even for diagnosis.

Q. But I'm suggesting that surgeons might have the view that because they do it in their particular sub-specialty and because it's not that complicated they could imagine how it should be done in some other sub-specialty.

A. You know, when you're dealing with patient care there are some overriding principles that apply across the board and the principles - those principles underline what I was saying about, with regard to discussions of risk and benefits of the two testing techniques. It's just - based on the principle of informed consent that I made my comments.

Q. All I'm suggesting is that your view is going to be based on your experience and it may be analogous experience but that because you don't have any specific experience having a discussion between the A-scan and the IOL Master, it can't be that your view sets the standard.

A. That's correct.

[110] I accept Dr. Mandelcorn’s answers. They explain why he was in a position to offer his opinion on the standard of care. They make sense. He had analogous experience he could draw from. Dr. Mandelcorn was testifying as to overriding principles of informed consent. Dr. Stein may have more directly similar experience but he made incorrect assumptions as I have outlined above. His evidence is not due more weight in these circumstances. Further, Dr. Stein did not disagree with Dr. Mandelcorn’s evidence that informed consent required a discussion of risks and benefits. It was his opinion that this was done in the initial consultation. For the reasons set out above I disagree.

[111] In regards to Dr. Mandelcorn’s answer of “That’s correct” as set out above, it is not for Dr. Mandelcorn to decide whether he has sufficient experience to opine on the standard of care. It is for the Court to decide. I have decided that he does for the reasons I have set out.

[112] To summarize, it is clear that Dr. Mandelcorn is a retinal specialist and Dr. Stein a cataract surgeon. Dr. Stein’s work, career and professional affiliations have been much more focused on cataract surgeries than Dr. Mandelcorn’s. This does not persuade me to accept Dr. Stein’s evidence on the standard of care and reject Dr. Mandelcorn’s given the concerns I have with Dr. Stein’s testimony. Dr. Mandelcorn has primary cataract surgery experience and has analogous experience with informed consent together with a detailed knowledge of the elements of informed consent in this case, even though he was not having informed consent discussions with primary cataract surgery patients in 2007.

[113] Third, the defence argues that Dr. Stein’s experience is much more similar to Dr. Singer’s experience and therefore Dr. Stein’s evidence on the standard of care relating to informed consent should be preferred and Dr. Mandelcorn’s evidence given less weight. I disagree. Again, this is for several reasons.

[114] The defence argument in this regard is built on multiple factors. Dr. Stein is a comprehensive ophthalmologist, not a specialist. This practice is more similar to Dr. Singer’s than to that of Dr. Mandelcorn, who is a specialist comprehensive ophthalmologists refer patients to. Dr. Mandelcorn works in a tertiary hospital in a big city and Dr. Singer is in the community in his own practice. The defence argues that Dr. Singer’s community practice is more like Dr. Stein’s practice than Dr. Mandelcorn’s.

[115] I reject this argument. There was no evidence before me that the standard of care relating to informed consent in the context of this case would be different depending on whether the doctor was a specialized or comprehensive ophthalmologist, or whether the doctor practiced in a hospital or in a community setting.

[116] Further, Dr. Stein’s professional experience was also different than Dr. Singer’s. Dr. Stein has been a staff ophthalmologist at Mount Sinai Hospital since 1989. He performed surgeries there. He has a regular clinic there. He taught residents. In the clinic, he saw primarily complex cataract cases or cases that required a corneal transplant. He has been a staff ophthalmologist at Scarborough Hospital and its predecessor since 1987. Since 2000 he has been the Chief of the service, coordinating the schedules, educational events and meetings for what has grown to be eleven ophthalmologists. He has operated there one day a week and taken calls one day every two weeks. He was an assistant professor at the University of Toronto from 1992 to 2011 and since 2011 he has been an associate professor. He teaches eye residents, medical students and family physicians about ophthalmology. He also practices at the Bochner Eye Institute, one of the longest established private eye care facilities in North America. He has extensive professional involvement relating to cataract and refractive surgery. I outline all of this to establish that in my view, Dr. Stein’s background, although different than Dr. Mandelcorn’s, is also different than Dr. Singer’s professional background.

[117] Dr. Mandelcorn acknowledged in cross-examination that Dr. Singer’s clinic in Burlington is different than the tertiary centre in Toronto where Dr. Mandelcorn works and that Dr. Singer is not Dr. Mandelcorn’s professional peer. In my view, neither is Dr. Stein a professional peer of Dr. Singer’s. Further, I am satisfied that Dr. Mandelcorn understands the nature of a comprehensive ophthalmology practice. Dr. Mandelcorn testified he takes a general emergency call. He said a lot of his work deals with general complaints – pain, discomfort, stitch irritation and eye pressure. These are the same things a comprehensive ophthalmologist deals with. Dr. Mandelcorn works in a department with 15 to 20 ophthalmologists and has a very good idea about what they do.

[118] Fourth, I want to deal with Dr. Mandelcorn’s evidence on the IOL Master, his experience with it and his knowledge of the technology as it relates to the events in this case. The IOL Master was not available at the hospital where he worked in 2007. He does not perform the IOL Master testing himself. Neither of these two matters weakens his evidence in my view. The important part of his understanding of the IOL Master in 2007 for the purposes of his opinion on the standard of care is that it was more accurate in taking measurements of the axial length and therefore using these measurements made for more accurate calculations of the power of the lens to be inserted in the eye. Ms. Ellsworth was told to expect a certain outcome. The measurements taken with the A-scan made this outcome less likely. She should have been spoken to by Dr. Singer and the IOL Master should have been strongly recommended if she wanted the previously discussed outcome. If she chose not to have the IOL Master anyways then she needed to be told to expect a different outcome. Fundamental to this is that the IOL Master was more accurate in measuring the axial length of the eye in 2007. This fact is uncontroverted. Dr. Mandelcorn did not need to have the IOL Master in his hospital to know this. Neither Dr. Stein nor Dr. Singer disagreed with this.

[119] Further, although Dr. Mandelcorn does not perform IOL Master testing himself, he testified that no doctors do. In fact, the evidence of all three doctors who testified in this trial suggests that no doctor performs IOL Master testing personally. Instead, they rely on ophthalmological assistants like Ms. Van Kessel to perform the tests. Dr. Mandelcorn testified that he has the printouts from the IOL Master testing when he is in the operating room conducting a vitrectomy procedure and that he reads these printouts to determine the appropriate IOLs to use. He reads the measurements when dealing with complications arising from cataract surgeries. Although he no longer conducts primary cataract surgeries, he is familiar with the measurement printouts. His calculations of the variance in the A-scan results were not challenged. His evidence is reliable. His evidence on the issues of measurement and instrument unreliability was not undermined in cross-examination or by the evidence of Dr. Stein.

[120] In Dr. Mandelcorn’s evidence he appears to have incorrectly described how the A-scan test is administered. He described that the ultrasound probe is placed on the patient’s closed eyelid and the patient is not actually fixating when the measurements are taken. The evidence of Ms. Ellsworth, Dr. Singer and Dr. Stein all indicate that the A-scan measurements are taken with the patient’s eye open and focussing on a target. I find that Dr. Mandelcorn’s incorrect description does not affect his evidence. It was clear from all the evidence that technicians generally perform the tests, not the ophthalmologists, and this inaccuracy did not affect his evidence in any way on the standard of care or causation.

[121] It is factual that in 2007 Dr. Mandelcorn was not involved in setting protocols for staff regarding A-scan or IOL Master procedures. This does not weaken Dr. Mandelcorn’s evidence. The protocols in Dr. Singer’s office did not make the measurements accurate enough to achieve the expected outcome that was conveyed to Ms. Ellsworth by Dr. Singer in the initial consultation.

[122] A fifth concern was raised by the defence regarding Dr. Mandelcorn’s evidence. Dr. Mandelcorn acknowledged in cross-examination that he formed his opinion on the standard of care with regard to informed consent prior to the Dr. Singer’s examination for discovery and therefore prior to reading the discovery transcript. He also did not express his opinion about the standard of care until he authored his third report. In my view, neither acknowledgement makes his evidence less reliable.

[123] To deal with the last point first, I accept his explanation as to why the standard of care regarding informed consent was not dealt with in his first report. He explained that on his first review of the medical brief he was just trying to make sense of everything – get a general picture for Plaintiff’s counsel and interpret the numbers. Then Plaintiff’s counsel asked him very specifically to address informed consent and he went back to the records in much greater detail in order to do so. This is logical and does not make his evidence on the standard of care less reliable.

[124] On the point about Dr. Mandelcorn not having read Dr. Singer’s discovery transcript before offering his opinion on the standard of care (this was because the discovery had not taken place, not because the transcript was not made available to Dr. Mandelcorn), Dr. Mandelcorn acknowledged that ideally he would have had the discovery transcript before reaching a conclusion. He did not. I accept his explanation that he based his opinion about what discussions took place or did not take place on Dr. Singer’s records and if there was no note recording a discussion he assumed it did not take place. This is a reasonable approach in the circumstances of the discovery having not yet occurred and the transcript not being available. He thoroughly reviewed the record from the perspective of informed consent looking for “an insertion, a statement, something which revealed that there had been a discussion” and noted that there was no documentation of a second informed consent discussion between Dr. Singer and Ms. Ellsworth. He assumed it did not take place. He was entitled to rely on the records. His assumption turned out to be accurate. This does not undermine his opinion. Dr. Mandelcorn acknowledged that Dr. Singer’s records indicate that someone else, other than Dr. Singer, had discussions with Ms. Ellsworth about the IOL Master on October 30, 2007 and March 18, 2008. The notes made on these dates do not indicate that any discussions occurred about the inaccuracy of the A-scan measurements. For the reasons I have set out above, these discussions did not and could not have met the applicable standard of care as the technicians never would have given medical advice nor discussed the accuracy or inaccuracy or variability of the measurements with Ms. Ellsworth.

[125] Dr. Mandelcorn acknowledged in cross-examination that when he wrote his first report he was not in a position to reach a conclusion about whether Dr. Singer had the right or wrong type of discussion with Ms. Ellsworth or something in between. He agreed he was being prudent and fair. He did not have Dr. Singer’s evidence from his discovery. In his third report he did reach a conclusion. He had no additional documents available when he did so. Dr. Mandelcorn explained that he provided this third report dealing with the issue of informed consent after Mr. MacDonald raised the informed consent issue with him. He returned to the records and wrote the third report. I find nothing inappropriate with this. Dr. Mandelcorn was alerted to a particular issue and he reviewed the same records with this focus. I have dealt with the fact that he did not have the discovery transcript of Dr. Singer when he wrote his third report above. It may well be that he should have used different wording in his report rather than “It’s my opinion that a more extensive discussion should have carried out to more fully inform the patient”; however, he did clarify in the same report that the record did not show that Dr. Singer discussed with the patient his concerns about inaccuracy. There is no bias evident in any of this.

[126] Sixth, the defence position is that Dr. Mandelcorn never specifically testified that Dr. Singer’s actions or inaction fell below the standard of care on informed consent. I disagree. This was inherent and obvious from his testimony. No magic or specific words are required. I found Dr. Mandelcorn’s testimony to be crystal clear. The standard of care required Dr. Singer to have a further discussion with Ms. Ellsworth following the A-scan measurements and he did not meet that standard.

[127] Seventh, the defence suggested that requiring Dr. Singer to have a further discussion with Ms. Ellsworth in addition to his initial consultation and whatever discussions are reflected in the October 30, 2007 and March 18, 2008 notes by the technician might have made Ms. Ellsworth feel she was being badgered into paying for a service that she did not want. The defence submitted that any such further discussion was both unnecessary and inappropriate. I disagree. Ms. Ellsworth was never informed about the inaccuracy of her A-scan measurements and how their variability altered the likelihood of achieving the expected outcome. A further discussion would have ensured her expectations were realistic. It would not have been repetitive or inappropriate.

[128] Related to this is the defence position that Ms. Ellsworth in declining to pay for the IOL Master was exercising her right as a patient to make choices about the medical care she received. It is clear Ms. Ellsworth had the right to choose not to accept Dr. Singer’s recommendation of the IOL Master. It is uncontroverted that while Dr. Singer can recommend the IOL Master to his patients, OHIP does not consider it medically necessary and only provides coverage for the A-scan. OHIP requires physicians to offer the A-scan in all cases and to make clear that the IOL Master is optional. The Ministry of Health prohibits ophthalmologists from requiring a patient to pay for the IOL Master or refusing to perform cataract surgery because a patient exercises their right to choose the A-scan technology. I accept all of this. The problem is that Ms. Ellsworth could only meaningfully exercise this right if she was fully informed. She was not. I have assumed Dr. Singer recommended the IOL Master at the initial consultation. Ms. Ellsworth declined because she understood that she could expect the desired outcome with the A-scan as she had been told so by Dr. Singer. This expectation changed. Ms. Ellsworth needed to be further informed after her variable A-scan measurements were obtained.

[129] In conclusion, the standard of care required Ms. Ellsworth to be informed by Dr. Singer of the variable A-scan results because the extent of their variability significantly altered the likelihood of achieving Ms. Ellsworth’s expected outcome. The standard of care required Dr. Singer to give Ms. Ellsworth another opportunity to choose the IOL Master or to decline and reasonably expect a different outcome. The risks known to Dr. Singer after reviewing Ms. Ellsworth’s A-scan results were not what he expected on October 17, 2007, and therefore were not disclosed during his initial consent discussion with Ms. Ellsworth. His failure to bring the inadequacy of Ms. Ellsworth’s A-scan results to her attention constitutes a failure to disclose a material risk of the cataract surgery. Dr. Singer’s non-disclosure cannot be characterized as a simple error in medical judgment. The two choices open to Dr. Singer were to disclose or not disclose the newly discovered risks of proceeding. The evidence suggests that the choice made by Dr. Singer was not to disclose a material risk of the procedure. This choice was not sanctioned by law. As a result, Dr. Singer had one legally available option. His failure to choose that option constitutes negligence.

2) Causation

[130] There are two disputed elements of causation in this case:

a. Whether the breach in the standard of care with regard to informed consent caused Ms. Ellsworth to proceed without IOL Master testing or whether she would have proceeded as such in any event; and

b. Whether the decision to proceed without IOL Master testing caused the Plaintiff to suffer damages; specifically,

i. Whether the piggyback procedure would have been required if the Plaintiff elected to use the IOL Master; and

ii. Whether the piggyback procedure caused the Plaintiff to suffer from dysphotopsia.

a) Causation – The Plaintiff’s Position

[131] The Plaintiff says that the $200 upgrade to the IOL Master was quite modest. She testified that had she been informed of the inadequacy of her A-scan results, she would not have chosen to proceed to surgery with the A-scan measurements. She testified that she would have chosen to use the IOL Master. The Plaintiff repeatedly stated that these were her eyes, emphasizing their importance to her. She indicated that she wanted to maximize her visual outcome and that this is clearly demonstrated by her choice of upgraded lenses at an additional cost not covered by OHIP.

[132] The second and more complicated question is whether the Plaintiff’s decision to proceed without utilizing the IOL Master caused her to suffer damages. There are three aspects to this question: (1) whether the outcome would have been different if Ms. Ellsworth used the IOL Master; (2) whether the piggyback procedure was medically necessary or elective; and (3) whether the piggyback procedure caused Ms. Ellsworth to suffer from a condition known as dysphotopsia.

[133] Dr. Mandelcorn testified that the IOL Master is known to produce very precise measurements. Dr. Singer testified that he would have told patients the laser measurement (IOL Master), at over 95 percent, is far more accurate than the A-scan and that with a patient with myopia the IOL Master “would be significantly better in this clinical scenario.”

[134] It is the Plaintiff’s position that the piggyback procedure was medically necessary, not elective. The results of her cataract surgeries were so unsatisfactory that she could not cope without additional surgery. The result of Ms. Ellsworth’s cataract surgery was an under- correction leading to hyperopia. Dr. Mandelcorn estimated that the Plaintiff’s right eye was under corrected by plus three diopters. He estimated that the Plaintiff’s left eye was under- corrected by plus four diopters. Dr. Mandelcorn determined the extent of the under-correction by reference to the piggyback lens power selected by Dr. Ahmed. According to Dr. Mandelcorn’s logic, if Dr. Singer had chosen an IOL which was three diopters higher in the right eye, and an IOL which was four diopters higher in the left eye, additional piggyback surgery would have been unnecessary.

[135] The Plaintiff’s position is that the cataract surgeries resulted in a serious under-correction requiring remedial procedures. The piggyback procedure was a course of action recommended by both Dr. Singer and Dr. Ahmed. Even if Dr. Mandelcorn’s calculation of the under correction is incorrect, the fact that Dr. Singer and Dr. Ahmed recommended the piggyback procedure shows that it was medically necessary to remedy Ms. Ellsworth’s under-corrected vision. Dr. Singer testified that he recognized that the results were a disappointment. This supports the conclusion that Ms. Ellsworth’s refractive outcome was not satisfactory and could not have been remedied by simply wearing a pair of glasses. Dr. Singer referred Ms. Ellsworth to Dr. Ahmed for consideration of an IOL exchange. There is no evidence that he suggested to Ms. Ellsworth that the outcome was not as bad as she perceived. Although he testified that he outlined a number of remedial options, he did not suggest that he told the Plaintiff that her vision could be remedied as effectively with less invasive procedures, much less by simply wearing glasses. Dr. Ahmed specifically wrote a file note indicating that he suggested piggyback surgery (pg. 198 of Exhibit 1 – the joint medical records brief). Piggyback surgery would not have been endorsed by these two doctors if it was not necessary.

[136] The Plaintiff testified that after the piggyback procedure, she experienced a number of debilitating symptoms, including halos of light in her field of vision and shadows in her peripheral vision. She testified that she never experienced these symptoms prior to the piggyback surgery. Dr. Mandelcorn testified that these symptoms are consistent with a condition known as dysphotopsia. The halos are known as positive dysphotopsia and the shadows are known as negative dysphotopsia. Dr. Mandelcorn examined Ms. Ellsworth and concluded that these symptoms were not related to any other conditions. Dr. Mandelcorn testified that generally dysphotopsias in cataract patients are thought to be caused by the implant itself. He concluded that Ms. Ellsworth suffers from dysphotopsia. Dr. Mandelcorn’s opinion and the Plaintiff’s own experience support the conclusion that the Plaintiff’s dysphotopsia was caused by the piggyback procedure and in fact could not have been caused by anything else.

b) Causation – The Defendant’s Position

[137] The Defendant emphasizes that cataract surgery is not primarily intended to improve a patient’s vision. The primary goal of cataract surgery is to remove the patient’s cataracts. Improving the refractive outcome of the patient is a secondary goal. The Defendant suggests that Ms. Ellsworth’s decision not to utilize the IOL Master demonstrates that she did not intend to maximize her refractive outcome. The Defendant suggests that because Ms. Ellsworth did not intend to maximize her refractive outcome, any additional opportunity to choose the IOL Master given to Ms. Ellsworth would have been redundant and immaterial. The Defendant argues that Ms. Ellsworth knew the risks of proceeding with the A-scan rather than the IOL Master based on her initial discussion with Dr. Singer.

[138] Dr. Stein testified that there are several reasons why a patient would choose the A-scan rather than the IOL Master. Among these reasons is the added cost of the IOL Master. Notations in Ms. Ellsworth’s chart suggest that she wanted to use the IOL Master but could not afford it. In addition, a patient may decide that his or her refractive outcome is not sufficiently important to justify choosing the IOL Master. The Defendant argues that Ms. Ellsworth’s reasons for proceeding with the A-scan, whatever they were, would not have been affected if Dr. Singer had given her another opportunity to choose the IOL Master after her A-scan measurements had been taken.

[139] The Defendant also argues that the piggyback procedure was entirely elective and not medically necessary. The Defendant emphasizes that the piggyback procedure was just one of several remedial options which Dr. Singer outlined for Ms. Ellsworth. The Defendant argues that if Dr. Singer or Dr. Ahmed recommended the piggyback procedure, that was only because she clearly showed a preference for a surgical remedy. Dr. Stein emphasized in his testimony that Ms. Ellsworth’s cataract surgery was actually successful. He testified that the cataract was successfully removed and thus the primary goal of the surgery was achieved.

[140] Dr. Stein calculated the extent of Ms. Ellsworth’s under-correction following the cataract surgeries differently than Dr. Mandelcorn. By his calculations, Dr. Singer’s selected lens power was very close to what was needed. Dr. Stein stated that Dr. Mandelcorn erred in using the lens power chosen by Dr. Ahmed to determine the amount of under correction. According to Dr. Stein, this would only make sense if Dr. Ahmed was aiming for perfect distance vision. Dr. Stein suggested that Dr. Ahmed was not aiming for perfect distance vision but instead was intentionally overcorrecting Ms. Ellsworth’s vision to allow her to have some intermediate reading vision. According to Dr. Stein’s calculation, Ms. Ellsworth’s right eye was only under corrected by 0.75 diopters and her left eye was only under corrected by 2.25 diopters. His calculations depict the under correction as minor, reinforcing the argument that the piggyback procedure was not medically necessary. In fact, Dr. Stein posited that Ms. Ellsworth’s vision was actually improved by the initial cataract surgery: her post-surgery hyperopia was less extensive than her pre-surgery myopia.

[141] Dr. Stein testified that most patients, even those who use the IOL Master, continue to rely on glasses after cataract surgery. Dr. Stein’s evidence at trial was that the majority of patients in 2007, even those using the IOL Master, required glasses after surgery both for distance and for reading. Ms. Ellsworth could have likewise continued to use her glasses rather than proceed with piggyback surgery. Dr. Stein’s testimony painted the Plaintiff as a person who demanded unrealistic results from her cataract surgery. Her desire to proceed with the piggyback surgery extended from her own unreasonable expectations rather than any medical necessity.

[142] Dr. Stein testified that there is no literature to suggest that dysphotopsia is caused by piggyback surgery. He testified that dysphotopsia is known to be caused by primary cataract surgery and that there is actually some literature suggesting that piggyback procedures reduce the dysphotopsia caused by primary cataract surgery. According to his testimony, piggyback lenses are a treatment for dysphotopsia rather than its cause.

[143] Dr. Stein testified that Ms. Ellsworth’s symptoms are more consistent with various other conditions including dry eyes and macular degeneration. These conditions are unrelated to cataract surgery and thus cannot be linked to the procedures conducted by Dr. Singer or Dr. Ahmed.

c) Causation – The Law

[144] The Plaintiff must show on a balance of probabilities that the Defendant’s breach of the standard of care caused the Plaintiff to suffer an injury. The Plaintiff must demonstrate that “but for” the Defendant’s negligence, she would not have suffered the injury alleged: see Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18, at para. 28.

[145] In cases of non-disclosure of a material risk by a physician, an objective standard is used to determine if the Plaintiff would have pursued other options if she had been informed of that risk. The Court must determine if a reasonable person, similarly situated, would not have elected to proceed with the procedure as a result of the material risks being properly disclosed: see Bollman v. Soenen, 2014 ONCA 36, and Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880.

[146] An intervening act between the Defendant’s conduct and the injury may break the chain of causation between the Defendant’s negligence and the injury: see Dallaire v. Paul-Emile Martel Inc., 1989 29 (SCC), [1989] 2 S.C.R. 419, at para. 10. In order to break the chain of causation, the intervening act must be “outside the bounds of reasonable foreseeability”: see Ysselstein v. Tallon, [1992] O.J. No. 881 (Gen Div.), at para. 49. In more general terms, a Defendant is only liable for the foreseeable results of their conduct: see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.

d) Causation – Analysis

[147] I find as a fact, on a balance of probabilities, that if Ms. Ellsworth had a second discussion with Dr. Singer after the results of the A-scan testing and had been told that the measurements made it less likely that she would achieve the refractive outcome she had been told she could expect, and had Dr. Singer strongly advised her to undergo the IOL Master testing, she would have undergone the IOL Master testing. She testified that she would have. I accept her evidence in this regard. It is consistent with what a reasonable person similarly situated would have decided. This is for several reasons.

[148] I accept her evidence that on October 30, 2007 when she underwent A-scan testing she understood only that it had been difficult for the technicians to get the measurements. She left feeling that they had ultimately got the readings they needed. No one expressed to her any concern with the actual range of measurements, just difficulty in obtaining the measurements. I find this consistent with Ms. Van Kessel’s testimony. Ms. Ellsworth left the testing with no reason to believe that there was such huge variance in the measurements taken, nor that the variance in the measurements made it more difficult than expected for Dr. Singer to accurately predict the power of the lens to be inserted. Nor did she understand the possible consequences, in terms of her eventual functioning, of the wrong power of implant being selected and that the selection of the correct power had been made more difficult by the variance in the A-scan measurements. Had this been explained to her I find that she would have chosen to have the IOL Master testing done before the surgery.

[149] The evidence suggests she was and is a woman of modest economic means. However, after Dr. Singer explained to her the benefits of the upgraded IQ lenses, she chose to purchase the upgraded lenses which were not covered by OHIP. This demonstrates two important points: (1) that she was willing to spend money on her eye surgery despite her modest means, and (2) that she intended to maximize the benefits of her cataract surgery. Ms. Ellsworth testified that she understood the IQ lenses would cut down on night glare. Dr. Singer testified that the upgraded lenses would not have helped with night vision but would be safer, less prone to infection, heal quicker, lead to less irritation and may also help prevent macular degeneration. Assuming Dr. Singer is correct and that Ms. Ellsworth was incorrect in her belief that the IQ lenses improved night vision, the IQ lenses nevertheless offered vision benefits that Ms. Ellsworth was willing to pay for.

[150] I find as a fact that Ms. Ellsworth wanted to maximize her refractive results. She was unwavering in her evidence that she expected, based her initial consultation with Dr. Singer, perfect driving vision, with drug store readers for reading. That she wanted to maximize her refractive outcome is also reflected in her disappointment with her actual refractive outcome. Dr. Singer’s testimony clearly supported Ms. Ellsworth’s significant post-operative disappointment. She expected and wanted more favourable refractive results and I find she would have paid for the IOL Master testing to achieve this.

[151] I find that Ms. Ellsworth’s refractive outcome was important enough to her that if she had been informed of her inadequate A-scan results she would have reconsidered her choice and opted for the IOL Master testing. Although there are two notes in her chart suggesting she could not afford it, there is insufficient context to suggest that her position would not have changed if she was informed of the inadequacy of her A-scan results. In addition, she paid the extra money to use the IOL Master prior to her piggyback surgery. This suggests that the Plaintiff was able to pay for the IOL Master if she thought it was necessary.

[152] This finding, that Ms. Ellsworth would have paid for the IOL Master testing, is logical and is supported by the evidence of both Dr. Mandelcorn and Dr. Singer. Dr. Mandelcorn stated in cross-examination in response to a question about whether Ms. Ellsworth would have chosen the IOL Master had Dr. Singer had a different discussion with her: “the fact that she decided not to pay for the IOL Master but to pay for the upgraded implant suggests that she didn’t really understand the consequences of not having the IOL Master.” In re-examination, Dr. Mandelcorn was asked about this very point again:

Q. Now, Doctor, you said that in reference to a question Mr. Marques, that the fact that Ms. Ellsworth paid for the upgraded lens, I think it's called the IQ lens but did not opt for the IOL Master you suggested that that meant she really didn't understand what she was being told about the benefits of the IOL; why do you say that?

A. I, my opinion is that had she been told about the consequences of inserting a wrong powered implant the consequences being more surgery, great vision distress and a change in her ability to work and so on, had she been told about all of that, that would have nullified any advantage that she had in choosing a premium lens and that would be a much more important way of spending her money than on a premium lens.

[153] I fully accept this evidence of Dr. Mandelcorn. It is common sense. She would have spent her limited resources on the testing.

[154] This is reinforced by Dr. Singer’s own evidence, regarding his notations in her chart, as discussed above, that he was concerned about Ms. Ellsworth’s choices. He wanted to be sure that she had made an informed decision. He spoke to Ms. Van Kessel. He should have spoken to Ms. Ellsworth. He was concerned that she chose an upgraded lens but not the IOL Master testing. He wanted to double check. I infer this was because her choice was not logical and Dr. Singer had the same concerns about her choice as Dr. Mandelcorn.

[155] The defence seems to argue, as the defence did on the standard of care issue, that the Plaintiff would have already known from her initial consultation with Dr. Singer the risks of proceeding with the A-scan testing. Any further discussions would have been redundant and she would have not changed her decision. This argument fails for the same reasons as the Defendant’s standard of care argument. It cannot be maintained as a result of the evidence I have accepted from both Dr. Mandelcorn and Dr. Singer clearly indicating that Ms. Ellsworth’s A-scan results were outside the predictable range of variance.

[156] The defence has suggested that Ms. Ellsworth refused the IOL Master on three separate occasions and therefore that common sense dictate that a fourth opportunity would not have made a difference. On the occasions when Ms. Ellsworth was made aware of the IOL Master she received no indication that her A-scan measurements were inadequate to achieve her expected results. Her previous decision is not reflective of what she would have decided with this additional information. A reasonable person, similarly situated, having chosen upgraded lenses and been told they can expect driving vision without the need for glasses, would not have elected to proceed with such inadequate A-scan measurements.

[157] Dr. Stein maintained that the cataract surgery was a success. Her cataracts were removed. She required glasses for distance and reading as she should have expected. Not only was there no negligence, there was no causation. I do not accept this evidence nor do I accept the argument that the cataract surgery was a success. I refer back to the outcome Dr. Singer testified he would have told Ms. Ellsworth to expect. He would have told her she would have distance vision without glasses and require glasses for fine vision and reading. This is what he said in his examination in-chief. At his discovery in 2012, he said he would tell patients “I will inject the lens that we’ve designed and measured for you to give you the best possible vision without glasses.” Dr. Singer acknowledged this answer as his and as being truthful during his cross-examination at trial. Success had to be looked at in this context, what Ms. Ellsworth had been told by Dr. Singer to expect as an outcome. The surgery was not successful. Ms. Ellsworth expected more than the removal of her cataracts based on Dr. Singer’s initial consultation.

[158] Would the outcome have been different with IOL Master testing? This involves a consideration of two issues: (1) Would the measurements have been more accurate and thus the lens selection more accurate? and (2) Was Ms. Ellsworth’s refractive outcome such that the piggyback procedure was medically necessary and not elective?

[159] On the first question, I find on a balance of probabilities that the measurements would likely have been more accurate if Ms. Ellsworth had undergone IOL Master testing. I make this finding because the evidence in this regard is uncontroverted. Dr. Mandelcorn and Dr. Stein and Dr. Singer all testified to this. Dr. Stein acknowledged that if Ms. Ellsworth had chosen to have her axial length measured by the IOL Master she would have had a better, superior, refractive outcome. This is the point at which the evidence of Dr. Mandelcorn and Dr. Stein diverge.

[160] Although Dr. Stein acknowledges that the IOL Master was more accurate in measuring axial length, he testified that Dr. Singer, using the A-scan measurements, selected a lens power very close to what Ms. Ellsworth required for the “best correct vision”. He testified that she did not have “a huge refractive error.” He said a plus 0.75 under-correction was the refractive outcome in the first eye and plus 2.25 was the outcome in the second eye. His opinion was that in 2007 most patients following cataract surgery required thin glasses for distance and glasses for reading. Ms. Ellsworth did. This was the expected outcome. She chose to have the piggyback surgery instead of using glasses for distance and reading. This was her choice; it was not medically required. Specifically, he testified in-chief in regard to Ms. Ellsworth’s refractive outcome after her initial surgeries as follows:

Most of my patients that have a refractive outcome like that would simply wear a pair of glasses and would not be required to have any other surgery and any other surgery would be elective.

[161] The conclusion of Dr. Stein’s evidence in this regard is that there was no link between the A-scan measurements and the piggyback surgery. Put another way, there was no link between Ms. Ellsworth not using the IOL Master and the piggyback surgery. In his opinion, the piggyback surgery was elective surgery with the goal of decreasing Ms. Ellsworth’s dependency on glasses. She could have simply worn a pair of glasses and functioned well.

[162] Before turning to Dr. Mandelcorn’s evidence on this causation issue, there is an assumption in Dr. Stein’s evidence that is not in accordance with the evidence of Dr. Singer or Ms. Ellsworth. Similar to Dr. Stein’s evidence on the standard of care issue, Dr. Stein assumed on the causation issue that Dr. Singer had told Ms. Ellsworth that she would require glasses both for distance and reading. This does not accord with either of their evidence. This weighs against accepting Dr. Stein’s evidence on causation.

[163] Dr. Mandelcorn’s evidence was very different with respect to the outcome of the cataract surgeries and therefore the reasonableness and medical necessity of the piggyback surgery. Dr. Mandelcorn was of the opinion that the method of measurement (the A-scan) had given a wide range of possible implant powers and that the implant power inserted was not the one required to produce the refractive outcome Dr. Singer had told Ms. Ellsworth to expect. Dr. Mandelcorn’s evidence was that the implant that Dr. Singer inserted in Ms. Ellsworth’s right eye resulted in an under-correction of plus three and the implant he inserted in Ms. Ellsworth’s left eye resulted in an under-correction of plus four, “by almost four diopters”. He said a one diopter difference in the implant power makes a big difference for the patient’s lifestyle, for example, the necessity of glasses, and a four diopter difference makes a much bigger difference in the patient’s functioning. He explained the consequences to Ms. Ellsworth of these under-corrections as follows:

A. So prior to the cataract development she was myopic in the range of minus six which means that if she took off her glasses she was in focus up close, at a reading distance. That meant that when she'd go and went to bed she could read in bed without glasses, number one. Number two, when she wore the glasses the glasses put everything in focus but the nature of the optics of the correction of myopia is such that things are made to look smaller, minified, minified. That's the nature of myopic correction with spectacles. In the situation where the patient becomes - requires....

THE COURT: So every person with myopia when they get spectacles it makes things look smaller, right?

A. Look smaller, that's right.

THE COURT: So, we're just talking general at this point.

A. Generally, that's right. The first time that I got my spectacles at the age of 14 I thought that the ground was coming up at me because I thought - I don't know - where I'd sunken into the ground and became even shorter than I am. So but on the other hand when the person is hyperopic they are wearing glasses which are thicker. They're more powerful in focusing. In a sense they are like magnifying glasses, they're like magnifiers. And so the world that they see is a larger world, objects are actually in focus but they're larger. So she went from....

THE COURT: Just wait, I'm just finishing the bottom of the page.

A. So she went from the experience of 40 or 50 years of seeing things in a certain minified context to suddenly being confronted with large objects that were not part of her, her - you know her 'spacial' sense and this is very disruptive as you, you can imagine. And that translates into all sorts of symptoms, like reading....

THE COURT: Just....

A. Sorry.

THE COURT: So when you said she was under-corrected that means she was 'hypo'....

A. Hyperopic.

THE COURT: Hyperopic.

A. Hyperopic, no 'T'.

THE COURT: Can you spell that?

A. H-Y-P-E-R-O-P-I-C.

THE COURT: Sorry, and then you said translates to all sorts of symptoms and then you were about to list them.

A. Well, what she described really, she couldn't ride her bicycle, she couldn't read in bed, she couldn't....

THE COURT: Slow down. Thank you.

A. Couldn't work as a receptionist, couldn't do her crafts, sewing. Her whole visual world changed when she became hyperopic.

[164] Dr. Mandelcorn said the piggyback surgery was done to address her being under-corrected. The procedure gave her the focusing power that she did not have and that was necessary for her to see clearly at a distance. This made sense for her activity level without glasses. It was done so her world would no longer be as greatly contrasted with what her experiences had been up to the time of her cataract surgery.

[165] The difference between Dr. Stein’s and Dr. Mandelcorn’s evidence as to the extent of the under-correction is present because they each take a different view of what the goal of Dr. Ahmed’s piggyback surgery was in terms of refractive outcome. Dr. Mandelcorn assumed that Dr. Ahmed’s intent was to insert a lens to give Ms. Ellsworth good distance vision without glasses (the same goal as Dr. Singer) and he therefore used the lens power of the lenses Dr. Ahmed inserted to calculate the degree of the under-correction. Dr. Stein assumed that Dr. Ahmed’s intent was not to aim to give Ms. Ellsworth “perfect distance vision” (Dr. Stein used this term in a similar fashion as Dr. Mandelcorn and Ms. Ellsworth) but that his intention was to allow some intermediate or reading vision.

[166] This difference of opinion is magnified because Dr. Stein and Dr. Mandelcorn, from reviewing Dr. Singer’s records, had different opinions as to what Ms. Ellsworth’s actual refractive error was after the cataract surgeries and before Dr. Ahmed’s procedure. For example, Dr. Stein’s opinion was that the refractive error was only plus .75 and not approximately three diopters. Dr. Mandelcorn acknowledged this plus .75 was in a letter from Dr. Singer to Dr. Ahmed dated November 20, 2008 but testified that there was no validation of that in any of Dr. Singer’s records.

[167] I am unable to reconcile these differences. Dr. Ahmed did not testify. Dr. Ahmed’s goal in choosing the lens he selected to insert in the piggyback surgery is not clear from simply reviewing his records. I therefore conclude that the medical necessity of the Plaintiff’s piggyback surgery should be determined based on the conduct of the relevant actors rather than based on any calculation of the extent of the Plaintiff’s under-correction. I will summarize this evidence below. I find that based on all of the evidence and on a balance of probabilities that the piggyback surgery was not elective but medically necessary to deal with the extent of Ms. Ellsworth’s under-correction and therefore causally linked to the variable A-scan measurements.

[168] I will first review the evidence of Ms. Ellsworth on the extent of her visual difficulties between the cataract surgery and the piggyback surgery. It is clear from her evidence that she experienced an unsatisfactory cataract surgery in each of her eyes. Her complaints went far beyond concerns with having to wear glasses. Ms. Ellsworth’s description of her post-cataract surgery visual problems and functioning is consistent with Dr. Mandelcorn’s evidence that she was significantly under-corrected and how an under-correction leading to hyperopia would affect a person after they had experienced a lifetime of myopia.

[169] Ms. Ellsworth testified that after the cataract surgeries her vision was very blurry. The blurriness continued. She was not able to drive a car, watch television, or read. She tried to use her old glasses and that “just clouded everything out.” She was not seeing well enough to return to work. She consulted her optometrist Dr. Brodie. She got new glasses. They did not help. Some of this is detailed below in my review of the records. Ms. Ellsworth’s evidence in regard to her vision problems after the cataract surgery was supported by the evidence of Ms. Sparling. Ms. Sparling testified that Ms. Ellsworth could not see well out of either eye, that this did not improve and that she did not return to work.

[170] Ms. Ellsworth’s evidence of the extent of her visual problems between the cataract surgeries and the piggyback surgeries is supported both by documentary evidence filed in the trial and by the evidence of Dr. Singer himself. I first turn to the documentary evidence.

[171] There is a note in Dr. Singer’s file dated May 15, 2008, noting it is Ms. Ellsworth’s second post-operative visit. It says, “can’t read with readers but feels she can see distance with readers.” She was obviously concerned about her vision and was trying distance and reading vision with glasses. There is also a note in Dr. Singer’s file dated June 27, 2008 which says “patient told by Dr. Brodie now hypermyopic [Dr. Singer says this should have been hyperopic and the staff just probably wrote down what Ms. Ellsworth said] after surgery patient has taken 9 weeks off because she just can’t see.” (I have used words for short forms). This is consistent with Ms. Ellsworth’s testimony and goes well beyond her not wanting to wear glasses.

[172] The June 27, 2008 note indicates that Ms. Ellsworth had seen Dr. Brodie. As I will detail below, Dr. Singer testified he suggested Ms. Ellsworth meet with Dr. Brodie on May 15, 2008. Dr. Brodie’s file indicates she referred Ms. Ellsworth to Dr. Hakim, a cataract, corneal and refractive surgeon on August 26, 2008. On her referral note, Dr. Brodie wrote “Patient would like second opinion regarding post-cataract surgical outcome. She used to be very myopic her whole life and is now significantly hyperopic. She’s not very happy with Dr. Singer.” Dr. Brodie’s referral note stated that Ms. Ellsworth was “significantly hyperopic.” The note also reflects that Dr. Brodie tried to tell Ms. Ellsworth she had to adjust to this. Overall, the referral supports Ms. Ellsworth. There is no indication that Ms. Ellsworth was simply unhappy wearing glasses.

[173] I also have reviewed Dr. Hakim’s note, sent to Dr. Brodie and Dr. Singer, dated October 7, 2008. The note reflects that Ms. Ellsworth has post-operative hyperopia after suffering preoperative myopia. He notes three options, 1) contact lenses or spectacles, 2) IOL exchange, and 3) Lasik surgery, and suggests Ms. Ellsworth discuss these options with Dr. Singer. There is no indication that Dr. Hakim recommended or preferred one particular option over any other.

[174] I turn finally to Dr. Singer’s evidence. I have carefully reviewed his file pertaining to Ms. Ellsworth and his sworn testimony and a portion of his discovery transcript read in to the record by the Plaintiff’s counsel. At no time did he even suggest that Ms. Ellsworth was not experiencing vision problems post cataract surgery nor that the piggyback surgery was elective. He never suggested that Ms. Ellsworth’s concerns were simply related to a desire not to wear glasses. His testimony and actions suggest he viewed the piggyback surgery as a reasonable medical option for Ms. Ellsworth.

[175] Dr. Singer was referred to the May 15, 2008 note in his file made by his staff. Ms. Ellsworth reported she could not read with readers. Dr. Singer did not dispute this. He was asked about his findings that day and the discussion he would have had with Ms. Ellsworth. He testified that his finding was that Ms. Ellsworth had post-operative hyperopia, “that the measures taken were not as precise as we had hoped” and that Ms. Ellsworth was left with the need for hyperopic correction. Regarding their conversation, Dr. Singer said the following:

A. Well, I don’t recall the specific conversation but what I’ve written is, plan A is the checkmark, “That anatomically everything looks fine”, and P means, “See Dr. Brodie.” I said, “Many people react, do quite well with a bit of hyperopic overcorrection after surgery. Please see Dr. Brodie and let’s see if she can get you some glasses that will get you seeing better yet and hopefully glasses that you can tolerate.” So I left it with her to see her optometrist, and again, “Call us if there’s any issues or concerns.”

[176] He left it to Ms. Ellsworth to see Dr. Brodie and come back if there were concerns. The note demonstrates that Ms. Ellsworth was trying glasses as a solution. There is a reference to her using readers for reading and distance. Dr. Singer hoped that Ms. Ellsworth could get glasses to help her see better and that she could tolerate this outcome.

[177] Ms. Ellsworth clearly spoke with or saw Dr. Brodie because she reported what Dr. Brodie had told her to Dr. Singer’s staff on June 27, 2008. She did what Dr. Singer recommended and the note of June 27, 2008 reflects “she just can’t see.” It is clear her visual problems persisted. Dr. Singer testified this note reflects a call from Ms. Ellsworth to his staff on June 27, 2008 and that as a result of her call his staff made the appointment for Ms. Ellsworth to come in on July 7, 2008.

[178] Ms. Ellsworth testified that, at Dr. Singer’s suggestion, she did see Dr. Brodie for new glasses. Ms. Ellsworth was given a prescription for distance and mid-range and a separate prescription for reading and up close. With these prescriptions she was able to function better and to attempt to go back to work. She found the prescriptions very difficult to adjust to. The return to work was stressful as her vision was distorted. Ms. Sparling, in her evidence, confirmed that Ms. Ellsworth did get new prescription glasses and that Ms. Ellsworth told her that her vision with the new glasses was “as looking in a funhouse mirror where everything is distorted.” Ms. Ellsworth tried new prescription glasses. This did not improve her vision.

[179] Dr. Singer testified that when he met with Ms. Ellsworth on July 7, 2008, he planned to try to improve her corrected vision with a procedure called a YAG laser. His evidence was as follows:

A. So using the slip lamp, I proceeded to examine Ms. Ellsworth, and my diagrams indicate to me, because of the squiggles I have placed within the inner circle, that she has what we call posterior capsular, C-A-P-S-U-L-A-R, opacification, O-P-A-C-I-F-I-C-A-T-I-O-N, opacification, which is not unusual for relatively younger patients with cataract surgery, that that clear bag holding the implant, for some reason, in some patients, that bag becomes cloudy, and that often necessitates a laser procedure to open that bag, and that’s why under “Assessment” I have, “Capsular haze.” CAPHA, C-A-P-H-A, short form for posterior capsular opacification, CAPHA. And my plan is to try to improve her vision with her current glasses by undertaking a procedure we call YAG laser capsulotomy, and that’s why I’ve indicated “List” for bilateral. YAG is the name of the laser, capsulotomy is the term used to describe it, in which several small holes with laser are placed in the capsule so the capsule remains there but a small hole is made in the middle of it so the patient can see more clearly through the implant.

[180] Clearly, Dr. Singer thought the clarity of her vision could be improved. She was using her glasses. He himself undertook a medical procedure when he performed the YAG laser capsulotomy on August 12, 2008. There was no suggestion by him that this was elective or meant to deal simply with a concern of Ms. Ellsworth’s about having to wearing glasses. By his testimony, he contemplated Ms. Ellsworth wearing her current glasses after the YAG procedure. Her vision problems continued notwithstanding what Dr. Singer described as successful YAG surgeries.

[181] Dr. Singer met with Ms. Ellsworth on November 17, 2008. The note in her record made by Dr. Singer’s staff suggests that Ms. Ellsworth felt there had been no change since the YAG procedure. This is entirely consistent with Ms. Ellsworth’s actions. In the interim, she had gone back to Dr. Brodie, who wrote a referral to Dr. Hakim for a second opinion on August 28, 2008, a day after the YAG procedure, and she had gone to see Dr. Hakim on October 7, 2008 for advice.

[182] Dr. Singer had received a copy of Dr. Hakim’s note of October 7, 2008 and Dr. Singer’s staff had booked an appointment for Ms. Ellsworth for December 24, 2008. Dr. Singer testified the date was changed to an earlier date at his request. Ms. Ellsworth met with Dr. Singer on November 17, 2008. A “hyperopia plan” was formed at the November 17, 2008 appointment and Dr. Singer wrote the referral letter to Dr. Ahmed on November 20, 2008. Dr. Singer acted quickly to see Ms. Ellsworth and to refer her to Dr. Ahmed. From these actions I can reasonably draw an inference that he did not view this as elective or simply a response to Ms. Ellsworth being disappointed with having to wear glasses.

[183] Dr. Singer testified as follows about the November 17, 2008 meeting with Ms. Ellsworth:

I remember that Ms. Ellsworth was emotionally upset and she exhibit [ed] some distress regarding her level of vision and her need for a prescription to see well for distance.

After doing the exam, I first would acknowledge her concerns and agree with her that she’s been left with post-op hyperopia and I would have had a full discussion the reasons for the result in hyperopia, in other words, the relative inaccuracy or difficulties measuring her eye with the Ascan ultrasound. I would have apologized to her. I always do when I’m faced with patients that have not had the outcome that we wish. I would have mentioned a sincere heartfelt apology, and then I would have talked about where we go from here. And I would have mentioned to her that, I know Dr. Ahmed. I’ve been to several meetings that he’s chaired and spoken to, and he is considered to be rather an expert in dealing with patients that have had a suboptimal refractive outcomes from their surgery. And I would have mentioned to her that he’s an excellen [t] surgeon, it’s a teaching clinic, his office is in Mississauga, and I really would like her to go see him and let’s see what we suggest, and I said, “Look, I’m going to get on with it. I know you’re distress [ed]. I feel badly about the outcome. Let’s see what can be done.” And I also ask [ed] that she contact us if any concerns arise, and I also asked her to contact us after her visit so that we could discuss his suggestions.

[184] I do not assume anything with respect to causation from Dr. Singer’s apology. An apology could be extended for different reasons. What is important to me is that Dr. Singer took Ms. Ellsworth’s concerns seriously and wanted to help her find solutions. He never suggested this referral was elective or made simply because she did not want to wear glasses.

[185] Dr. Singer was shown Exhibit 18, a handwritten note Ms. Ellsworth’s friend, Leanne Sparling, had made when she accompanied Ms. Ellsworth to the November 17, 2008 appointment. In response to one of Ms. Sparling’s notations, Dr. Singer surmised that this note refers to the 10 to 20 percent of patients whose post-op refraction is significantly out of line with “our preferred outcome.” He described a post-op refraction significantly off from what “we expect.” He was describing Ms. Ellsworth’s result. His description of “significantly” off or out of line is consistent with Dr. Mandelcorn’s evidence on causation and inconsistent with Dr. Stein’s evidence that the refractive outcome was very close to what Dr. Singer intended.

[186] Dr. Singer agreed with Ms. Sparling’s note that Dr. Singer gave three options to Ms. Ellsworth. He did not recommend LASIK surgery. Dr. Singer expanded on the three options he provided in his evidence at trial:

Yes. I think those are some of the options that I must have discussed with Ms. Ellsworth at the visit; one was to wait six months, let’s see how you do. Some people do adapt quite well to hyperopic correction. Two; contact lenses. For some reason the hyperopia is not nearly as bothersome when it’s corrected for in contact lenses, so I suggested that’s a possibility. And the third; it looks like Ms. Sparling has written secondary implants, which is an option I did provide Ms. Ellsworth, and that’s a procedure that Dr. Ahmed is particularly trained and expert in doing.

[187] There was no suggestion in Dr. Singer’s evidence that the secondary implant option was elective. Her vision had not improved and clearly she was wearing glasses as she was measured at Dr. Singer’s office with glasses. Ms. Ellsworth had obtained two new prescription glasses as detailed above.

[188] Dr. Singer described at trial that his referral to Dr. Ahmed was a reasonable plan. He said he was concerned with the outcome of her surgery and Ms. Ellsworth’s emotional distress. He referred her because he hoped and felt there was a surgical answer to her difficulties.

[189] Dr. Singer had a follow-up call with Ms. Ellsworth after she saw Dr. Ahmed. Dr. Singer testified to the following regarding the call:

I was very concerned about her post-op result, I knew she was upset, and I was not happy with the result as well. So, knowing these things, I wanted to feel how she felt about it, her visit, and I also wanted to discuss options with her, because I, I did mention to her that, after Dr. Ahmed’s visit, I wanted to discuss the options that he would layout to her. He’s got a very busy teaching practice. He tends to speak very quickly. I wanted to [go] over the results of the exam and perhaps assist her in making an informed decision. And after discussions with Ms. Ellsworth about the options, I recommended that she proceed as she had planned with what we call piggyback lenses.

Well, I always wish for the best post-op result for our patients, and I know that she was left significantly hyperopic, and that upset, upsets, upset me at that as well as her, obviously. So my, my hope and goal was to relieve her discomfort and allow her to achieve what the initial target was and that’s good vision without glasses. So I wanted to make sure that we had followed up on setting a course of action for her.

[190] At his discovery, Dr. Singer said he felt Ms. Ellsworth’s decision to proceed with Dr. Ahmed’s recommendations was reasonable. Dr. Singer himself was concerned with the post-operative result. All of his interactions with Ms. Ellsworth reflect this concern. He recommended she proceed with the piggyback surgery. He did not call it elective or treat it as elective.

[191] Dr. Ahmed did perform the piggyback surgery. There is no indication in his records that he viewed this as elective.

[192] In all of the circumstances, I find that the wide variance of the A-scan measurements led to a situation where Dr. Singer inserted lenses which caused a significant under-correction of Ms. Ellsworth’s vision. I find that the piggyback surgery was not elective but medically warranted to correct a significant problem.

[193] I turn now to the issue of dysphotopsia. For the reasons set out below I find that on a balance of probabilities, Ms. Ellsworth has dysphotopsia and that her dysphotopsia is causally connected to the lenses inserted in the piggyback surgery.

[194] I will first examine what both Dr. Mandelcorn and Dr. Stein testified to in regard to dysphotopsia.

[195] Dr. Mandelcorn’s evidence was that Ms. Ellsworth has dysphotopsia and that her symptoms following Dr. Ahmed’s piggyback surgery cannot be explained by macular changes from her high myopia or by an eye dryness and irritation condition. Dr. Mandelcorn described that dysphotopsia “means the things that you’re seeing are uncomfortable, disturbing, not what you expect; not really normal and annoying at the least and maybe more significant in terms of affecting your function to the extreme.” He said that generally the cause of dysphotopsia in cataract patients is thought to be the implant itself. He testified, during cross-examination, that dysphotopsias are a recognized complication of IOL implants of any kind. In-chief, he described this in detail:

A. Generally the cause is thought to be the implant itself. The way it's manufactured; the way it's designed; the place that it sits in the eye creates a number of optical aberrations. Light coming in from the side hits an edge of an implant or light coming in from the center reflects through various surfaces within the implant, all of which add up to in some patients, uncomfortable vision. Images that disturb them that are difficult for the patient to deal with; to actually work through.

[196] Dr. Mandelcorn said Ms. Ellsworth complained of these symptoms to him. At first she said her vision was blurred and foggy. Then she sent a letter to her lawyer that was forwarded to Dr. Mandelcorn in which she provided a larger list of symptoms, breaking it down into greater detail. Dr. Mandelcorn said he regarded the letter as a more detailed elaboration of what Ms. Ellsworth was trying to tell him in her first visit to his office. He said all the symptoms fall into the category of dysphotopsia. According to Dr. Mandelcorn, the typical symptoms of dysphotopsia, described in Ms. Ellsworth’s letter to her lawyer, include the following:

• Light sensitivity in both eyes; florescent lights; lights reflecting off a page; back lit signs; T.V.; computer screen.

• The need to reposition her head to minimize light interference.

• Refocussing, concentration, double checking.

• When moving eyes from a stationary position experiencing images and shadows that are not real.

• An absence of vision outside the centre.

• Light bursts, stars and shadows.

[197] Dr. Mandelcorn concluded that Ms. Ellsworth had a severe case of dysphotopsia. Ms. Ellsworth described not only the typical symptoms but also examples of the classic effects of dysphotopsia on a patient’s ability to function.

[198] Dr. Mandelcorn testified that the incidence of dysphotopsia in patients with intraocular lens implants varies in different publications, from somewhere around 10 to 15 percent up to 50 percent. He said that Ms. Ellsworth’s having two artificial lenses in each eye, one in front of the other, would from a common sense viewpoint worsen the dysphotopsia or at least increase the risk of dysphotopsia. He described negative and positive dysphotopsia and said “there are some suggestions by some people that putting two implants in, one in front of the other can solve the negative dysphotopsia situation.” He testified that this view is not universally held and it is not thought to be a one hundred percent correction of negative dysphotopsia. He said the numbers suggest an improvement anywhere between 50 and 70 percent. He said there is nothing to suggest that a piggyback implant will control or correct positive dysphotopsia.

[199] In terms of treatment, Dr. Mandelcorn testified that there is no treatment that works 100 percent of the time. There are some measures doctors take to try to mitigate the symptoms but there is a percentage of patients that have dysphotopsias that interfere with their functioning for life. He testified that Ms. Ellsworth is in that category because in 2011, two years after the piggyback surgery, she still had these symptoms and probably will always have dysphotopsia.

[200] In response to Dr. Stein’s opinion that Ms. Ellsworth’s less than perfect best corrected vision appears to be related to macular changes from high myopia and not a result of complications from her intraocular procedures, Dr. Mandelcorn testified as follows:

A. Well, it's incorrect because Dr. Stein did not examine the patient. In fact nobody in the file examined the patient's macula except for me and macula disease is my specialty and I found her macula to be perfectly normal.

Q. And then finally the - you conclude at the very top of page 3, Doctor, of that reply. Your conclusion that the visual acuity outcome....

A. Is the result of - it's not the result of macular abnormalities. I concluded that it was the result of the optics provided by the implants.

[201] Dr. Mandelcorn examined Ms. Ellsworth’s macula and concluded that it was “perfectly normal”. He said if she had any signs of macular degeneration he would have seen them.

[202] In response to Dr. Stein’s opinion that Ms. Ellsworth’s complaints could be explained as eye dryness and irritation, Dr. Mandelcorn testified as follows:

A. Well, she did in her letter, listing all of her problems, all of her eye problems. She did say that, "My eyes are dry and irritated," but that was only the small part of the list of complaints that she had. And the major list, the major problems were the flare, the visual uncertainty, the - and sensitivity to light. That's really what she complained about most and the dryness and irritation are listed at the very end of that letter.

[203] Dr. Stein in his testimony described dysphotopsia as a very rare complication of intraocular lens implants. Dysphotopsia can occur with a variety of different lenses and is classified into two categories: negative and positive. With negative dysphotopsia, patients may experience a shadow on the temporal side of their visual field. With positive dysphotopsia, patients experience glare and halos. He said dysphotopsias tend to occur immediately after surgery and in 80 percent of patients, especially those with negative dysphotopsia, the symptoms improve over time. Positive dysphotopsias almost always occur with a certain type of implant, multi-focal implants, which Ms. Ellsworth did not have.

[204] Dr. Stein further testified as to the following with reference to dysphotopsias:

• Dysphotopsias are rare with the type and quality of implant that Ms. Ellsworth had.

• The vast majority of patients, 80 percent or more, improve with time.

• Glare and halos and shadows do not develop months after surgery; they appear immediately after the surgery and then tend to improve with time.

• In his own practice, having performed of over 50,000 cataract operations, he has only had a few patients that had negative dysphotopsia – four in total – three improved over time and one patient’s symptoms were resolved using a piggyback lens.

[205] He stated that there were a number of papers over the years that documented piggyback surgeries being successfully used to resolve dysphotopsias. With negative dysphotopsia, the belief is that if the piggyback lens is put in, the light will then hit the front surface of the piggyback lens and the shadows will disappear. He referred to two specific articles suggesting that piggyback lenses can also decrease positive dysphotopsias. The articles he referred to are now Exhibit 31 (the Ernest article) and Exhibit 32 (the Masket article). In reference to Exhibit 31, Dr. Stein testified that Dr. Ernest described a patient with significant positive dysphotopsia whose symptoms were resolved with piggyback lenses. In reference to Exhibit 32, Dr. Stein testified that Dr. Masket described ten or eleven patients that underwent piggyback surgeries to remedy dysphotopsias and 100 percent improved, most completely and some partially. Dr. Masket tried a variety of different surgical procedures to reduce dysphotopsias and his technique using piggyback lenses was the most successful in resolving or improving the symptoms in all his patients. With respect to these articles, Dr. Stein concludes as follows:

A. Dr. Ernest report was simply a case report and it was a case that was done with a good outcome but we can’t hold our hat on just a simple case report. And Dr. Masket’s report was a truly scientific report with a good group of patients that are hard to come by with significant dysphotopsias.

The fact that all his patients improved with the piggyback lenses by three months demonstrated, and no significant side effects, that this is a very useful procedure to treat dysphotopsias and that piggyback lenses actually don’t increase dysphotopsias which is a very important distinction.

None of the patients got worse. None of the patients that had dysphotopsias the symptoms became more severe following the piggyback lens, they all improved and most of them completely.

[206] Dr. Stein testified that 80 percent of patients with dysphotopsia improve over time without surgical intervention because of neuroadaptation. He said when symptoms actually increase over time the chances are very good that the symptoms are not related to dysphotopsias from the intraocular implant but to other causes.

[207] I prefer the evidence of Dr. Mandelcorn over Dr. Stein on the issue of dysphotopsia in this case for several reasons which I will detail below.

[208] First, Dr. Mandelcorn formed his opinion that Ms. Ellsworth had severe dysphotopsia based on his actual examination of Ms. Ellsworth and the symptoms Ms. Ellsworth described to him. The symptoms included very specific items which were far more detailed than simply “diminished vision or dry eyes.” Dr. Stein did not testify that the symptoms Dr. Mandelcorn referred to are not typical of dysphotopsia. In fact, Dr. Stein similarly described the symptoms of dysphotopsia. Dr. Stein attributed Ms. Ellsworth’s complaints to dry eyes and a generalized complaint of diminished vision. This is not consistent with the symptoms reported by Ms. Ellsworth to Dr. Mandelcorn in her meeting with him on December 1, 2009. Neither is it consistent with the symptoms Dr. Mandelcorn took from Ms. Ellsworth’s August 9, 2011 letter to her counsel. Neither is it consistent with Ms. Ellsworth’s testimony. Nor is it consistent with a note in Dr. Ahmed’s file. Dr. Stein’s opinion is based on a very narrow view of Ms. Ellsworth’s complaints after the piggyback surgery. This narrow view is not consistent with the evidence.

[209] Dr. Ahmed performed the piggyback surgery on the right eye on April 21, 2009 and on the left eye on July 21, 2009. Dr. Mandelcorn met with Ms. Ellsworth on December 1, 2009. On December 1, 2009 Ms. Ellsworth reported to Dr. Mandelcorn that her vision is reasonably good looking straight ahead about five feet but looking up close or in the distance she has significant blurring. She also complained that she needed glasses to read. She complained about night vision and distance vision. Dr. Mandelcorn did not note any complaints of other specific visual problems and said he would have noted them if she had voiced them. In Ms. Ellsworth’s letter of August 9, 2011, forwarded by Ms. Ellsworth’s counsel to Dr. Mandelcorn, Ms. Ellsworth complains of glaring star bursts, flashing lights, light bursts, stars and mega halos (day and night). Dr. Mandelcorn confirmed that none of these specific complaints were reported by Ms. Ellsworth to him in December 2009.

[210] The defence suggests that this should lead to two conclusions. First, these complaints were not related to the piggyback surgery as they were not reported post-surgery and according to Dr. Stein’s evidence these symptoms would surface immediately after surgery if she had dysphotopsia. Second, Ms. Ellsworth’s evidence is not reliable or credible because she did not report these symptoms in 2009 and later added them to her list of complaints in 2011. I disagree with both propositions.

[211] During the cross-examination of Dr. Mandelcorn, defence counsel suggested that Ms. Ellsworth had changed her description from blurry vision in 2009 to specific kinds of phenomena in 2011. Dr. Mandelcorn responded as follows:

A. Had she come to my office prepared with a written list of all her symptoms and if I had not recorded all that list I would have been surprised to see this in a subsequent letter two years later.

Q. Right.

A. But since she didn't come with a prepared list of her complaints except in a general way to say that she - that she was blurred, not driving, couldn't do her leisure activities, couldn't ride a bike, couldn't work the way she was, that was enough for me at that point to say that there was an ongoing problem subsequent to her surgery.

[212] I find that Ms. Ellsworth’s further description of her symptoms in 2011 was an elaboration of her 2009 description and not a change. As Dr. Mandelcorn explained in his evidence in-chief, he regarded the letter as “just a more detailed elaboration of what she was trying to tell me in the first visit to my office, just a little more detail about that.” She did not complain only of blurred vision when she met with Dr. Mandelcorn in 2009. She complained about a decrease in her functioning and enjoyment of activities. Her 2011 letter expanded on her previous description. The fact that this level of detail was not provided in 2009 does not mean these symptoms were new in 2011.

[213] Further, there is a post-op note in Dr. Ahmed’s record from April 28, 2009, a week after the piggyback surgery, that said “pt still experiencing halos.” This is additional support for Ms. Ellsworth’s evidence that she was experiencing halos in 2009 after the piggyback surgery. Dr. Ahmed’s record also contains a note dated November 27, 2009 indicating that Ms. Ellsworth complained that she has to move her entire body in order to read. Dr. Mandelcorn described this type of repositioning as a typical symptom of dysphotopsia.

[214] I accept Ms. Ellsworth’s evidence describing her symptoms after the piggyback surgeries. These symptoms started, according to Ms. Ellsworth, after the piggyback surgeries and Ms. Ellsworth testified that they have not improved. She described interference in front of her eyes. She experiences shadows. She is squinting a lot and clearing her field of vision. There are certain things that are faded out of her vision. Her vision is not acute. She may have to use a magnifier for close up reading. Ms. Ellsworth described that when she moves her eyes from left to right there is a shadow that follows that movement, almost like a watery sensation, as if you were in a pool. There is constant movement and interference in front of her eyes at all times, which she described as very distracting. It can be made worse by the light source. Heavy lighting makes it worse. Fluorescent lighting is very straining. These symptoms affect her both inside and outside. She describes being a passenger in a car with lights coming toward her as “unbelievable”. She is constantly clearing her field of vision and trying to get the distractions out of the way. These symptoms are consistent with what she described to Dr. Mandelcorn in December 2009 and elaborated on in her letter of 2011. Some of her complaints are noted in Dr. Ahmed’s 2009 records.

[215] Dr. Mandelcorn had a reasonable basis for his opinion that Ms. Ellsworth has dysphotopsia. I discount Dr. Stein’s alternative explanations for Ms. Ellsworth’s symptoms for several reasons. He testified that her symptoms could be explained by dry eyes or macular changes. Ms. Ellsworth’s complaints went far beyond dry eyes – both in her own testimony and her initial description to Dr. Mandelcorn on December 9, 2009. Further, and significantly, Dr. Mandelcorn examined Ms. Ellsworth and Dr. Stein did not. Dr. Stein acknowledged on cross-examination that examining Ms. Ellsworth would have been helpful but he did not know that he had the ability to examine her. Dr. Stein’s suggestion that Ms. Ellsworth’s symptoms are consistent with other conditions is speculative. Dr. Mandelcorn testified that he examined the Plaintiff. He ruled out the very conditions suggested by Dr. Stein. Dr. Mandelcorn examined Ms. Ellsworth’s macula and found it to be perfectly normal. Macular degeneration is closely associated with Dr. Mandelcorn’s specialization, the back of the eye. Dr. Stein, in his evidence, said that Dr. Mandelcorn did not perform a variety of other tests which might have documented a subtle macular change. I do not find this persuasive or that it in any way weakens Dr. Mandelcorn’s evidence that Ms. Ellsworth suffers from dysphotopsia. Dr. Mandelcorn examined Ms. Ellsworth’s macula. Dr. Stein did not. Any opinion Dr. Stein offers in this regard is speculative. This is particularly so when Dr. Stein confirmed that he did not put in his report a list of the shortcomings in Dr. Mandelcorn’s examination of Ms. Ellsworth’s macula, including that he did not perform a variety of sophisticated tests, because he did not think it was important.

[216] Of particular importance to me in accepting Dr. Mandelcorn’s evidence over Dr. Stein’s on this issue is that Dr. Stein acknowledged that in Dr. Mandelcorn’s December 9, 2009 report, he specifically expressed the opinion that Ms. Ellsworth’s symptoms are a result of dysphotopsia (prior to Ms. Ellsworth’s 2011 letter) and yet Dr. Stein did not specifically address this in his first report dated September 1, 2013. This is significant. Dr. Stein did not state in his initial report that he was of the opinion that Ms. Ellsworth did not have dysphotopsia. A careful review of his evidence given at trial reveals that he did not say she did not have dysphotopsia. He said the symptoms of dysphotopsia would appear right after surgery and he seemed to be of the view that her symptoms were not reported until 2011. I have found otherwise. Dr. Mandelcorn offered his opinion that Ms. Ellsworth suffered from dysphotopsia in December 2009. Dr. Stein acknowledged this. Dr. Ahmed recorded what symptoms Ms. Ellsworth complained of post the piggyback surgery and they are typical symptoms of dysphotopsia. I have set this out in detail above. Dr. Stein’s assumption was incorrect. Dr. Stein was also of the opinion that based on the literature piggyback surgery reduces the symptoms of dysphotopsia. Since it did not reduce Ms. Ellsworth’s symptoms her symptoms had to be related to other causes. I do not accept Dr. Stein’s conclusion in this regard.

[217] The literature Dr. Stein relied on is limited. One of the papers relied on by Dr. Stein was simply a case report involving only one patient. The second paper relied on by Dr. Stein was described by Dr. Stein as a truly scientific report with a good group of patients. He suggested that a good group of patients with significant dysphotopsias is hard to come by. This may explain why the literature referred to by Dr. Stein was limited to two papers, one of which was limited to a single case. In addition, the literature referenced by Dr. Stein only discusses the effect of piggyback lenses on patients who are already suffering from dysphotopsia. It does not discuss the effect of piggyback lenses on patients who do not suffer from dysphotopsia as a result of their primary cataract surgery, although none of the patients in the literature suffered worse symptoms as a result of their piggyback surgery. Unlike the patients in the studies, Ms. Ellsworth did not have dysphotopsia prior to the piggyback surgery.

[218] Dr. Stein’s evidence was that 80 percent of people with dysphotopsia get better over time because of neuroadaptation. He said the vast majority of patients with dysphotopsia improve with time and when symptoms actually increase over time they probably are not related to dysphotopsia but to other causes. This evidence does not mean Ms. Ellsworth does not have dysphotopsia. Not all patients improve. In addition, I have found that Ms. Ellsworth suffered the typical symptoms of dysphotopsia in 2009, right after the piggyback surgery. Dr. Mandelcorn’s opinion in 2009 was that she had dysphotopsia, as Dr. Stein confirmed in his evidence. Ms. Ellsworth testified that her symptoms remained the same. They did not improve or worsen.

[219] I find that the evidence supports the conclusion that Ms. Ellsworth’s dysphotopsia was caused by the piggyback surgery she underwent. There is no evidence at all (orally or in the records) that Ms. Ellsworth experienced symptoms of dysphotopsia prior to the piggyback surgery. The literature referred to by Dr. Stein, as set out above, does not deal with the incidence of dysphotopsia following piggyback surgery. Dr. Stein testified that IOLs are a known cause of dysphotopsia. He did not testify that IOLs are only known to cause dysphotopsia when inserted during primary cataract surgery. His testimony that piggyback lenses are known to reduce symptoms of dysphotopsia is not particularly relevant. Ms. Ellsworth was not suffering from dysphotopsia when she underwent piggyback surgery. When Ms. Ellsworth underwent piggyback surgery, an IOL, a known cause of dysphotopsia according to Dr. Stein, was inserted into her eye. Afterwards, she suffered symptoms of dysphotopsia. Dr. Mandelcorn concluded that these symptoms were the result of dysphotopsia rather than any other condition. He examined Ms. Ellsworth. Dr. Stein did not. The evidence establishes on a balance of probabilities that the Plaintiff’s dysphotopsia was caused by the piggyback surgery she underwent.

[220] The Final Written Argument of the Defendant referred to four cases holding that causation in a medical negligence action must be based on expert opinion. An opinion from a duly qualified medical expert is required. One cannot apply common sense to bridge gaps in a plaintiff’s causation argument: see Isai v. Chen, 2011 ONSC 3463 at paras. 16-22, GlaxoSmithKline Inc. v. Cherney, 2009 NSCA 68, at para 23, leave ref’d 2010 S.C.C.A. No. 17, Fairchild v. Glenhaven Funeral Services Ltd., [2002] 3 W.L.R. 89 (H.L.), cited in Aristorenas v. Comcare Health Services, 2006 33850 (ON CA), [2006] 83 O.R. (3d) 282 (C.A.), at para. 63, and Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.), at para. 67, aff’d 2010 ONCA 188.

[221] The defence specifically refers to a portion of Dr. Mandelcorn’s evidence in-chief as follows:

I can’t really quantify that kind of answer, how much more or how much less having two implants, one in front of the other will do with regard to dysphotopsia. What I can say is that just from a theoretical perspective, since the dysphotopsias are accepted as being the consequence of the implant design having to do with either the material of the implant or the edging of the implant, having two of the implants, one in front of the other from a common sense viewpoint, would indicate that two implants would probably worsen the dysphotopsias or at least increase the risk of dysphotopsias.

[222] The defence describes Dr. Mandelcorn as offering nothing more than general, tentative, unsupported speculation.

[223] I did not base any of my findings of causation on this part of Dr. Mandelcorn’s evidence. He acknowledged himself that this portion of his evidence was theoretical. Dr. Mandelcorn testified that dysphotopsias are caused by the implants themselves. Implants of any kind. No medical doctor was of the view that Ms. Ellsworth had dysphotopsia after the initial cataract surgeries. Dr. Singer did not testify that she did and he examined her several times after the cataract surgeries. Dr. Hakim’s records do not suggest that she did. Nor do Dr. Ahmed’s records. I accept, as set out above, that she had dysphotopsia after the piggyback surgeries which involved the insertion of an additional lens in each eye.

[224] This is the causal link. Both Dr. Mandelcorn and Dr. Stein testified that dysphotopsia can occur with implants. I need not reference Dr. Mandelcorn’s theories. Ms. Ellsworth did not have dysphotopsia prior to the piggyback surgeries. It is not relevant whether piggyback lenses increase the risk of dysphotopsia. A lens of any kind can cause dysphotopsia. Whether the risk is increased when it is a piggyback lens is not relevant to my decision. There is a risk with every lens inserted. Dr. Mandelcorn quantified this risk. He also diagnosed Ms. Ellsworth with dysphotopsia postoperatively. He was clearly of the view that her dysphotopsia was caused by an IOL of some kind. The evidence is clear that she did not suffer the symptoms of dysphotopsia after her primary cataract surgeries. This is sufficient to establish causation. I need not use common sense to bridge gaps in the Plaintiff’s evidence. I have expert evidence, which I have accepted, identifying the cause of Ms. Ellsworth’s dysphotopsia.

[225] The evidence supports the conclusion that but for the negligence of Dr. Singer, Ms. Ellsworth would not currently suffer from dysphotopsia. Dr. Singer knew that choosing the incorrect lens could result in hyperopia. Dr. Singer knew that hyperopia could be corrected by a piggyback procedure. This is demonstrated by Dr. Singer’s own post-operative recommendations. The evidence provided by both experts indicates that while it is relatively rare, dysphotopsia is known to be a potential consequence of IOL implants. The evidence supports the conclusion that Dr. Singer knew that a piggyback procedure and the corresponding risk of dysphotopsia was a possible consequence of using the incorrect IOL. The consequence was foreseeable to Dr. Singer and the injury suffered by Ms. Ellsworth therefore cannot be characterized as remote.

D. Damages

i) Preliminary Matters and Identification of Issues

[226] As a preliminary matter before addressing damages more fully, I look broadly at what Ms. Ellsworth has suffered. In the period between the initial cataract surgeries and the piggyback surgeries, she suffered under-corrections in both eyes with the primary symptoms, as she described them, being that her vision was very blurry and that she was not seeing well, even with glasses. She got new glasses through Dr. Brodie and with the new glasses things looked distorted and larger. She had two prescriptions for glasses – one for distance/mid-range and one for reading. She returned to work. She was fatigued and suffered headaches and her vision continued to be distorted. Her depth perception was off.

[227] It is important to note that Ms. Ellsworth’s under-correction was effectively corrected by the piggyback surgery. There is no dispute between the experts in this regard. Since the piggyback surgery, Ms. Ellsworth’s visual difficulties have related to her dysphotopsia rather than any under or over correction.

[228] Of further note is that Ms. Ellsworth would have likely worn glasses for reading even if Dr. Singer had achieved the expected outcome of the initial surgeries.

[229] Several elements of the damages claimed by the Plaintiff are disputed. The damages claimed by Ms. Ellsworth can be roughly categorized as follows:

1. General damages;

2. Lost earnings (past and future); and

3. Home/personal care expenses (future care expenses).

ii) Damages – The Plaintiff’s Position

[230] The Plaintiff submits that her dysphotopsia impacts every aspect of her life. According to Dr. Mandelcorn’s evidence, Ms. Ellsworth’s dysphotopsia is unlikely to improve. As a result, the Plaintiff claims general damages for pain and suffering and loss of enjoyment of life. The Plaintiff submits these damages should be assessed in the range of $95,000 to $115,000.

[231] The Plaintiff relies primarily on her own evidence, as well as the evidence provided by her son, Lianne Sparling and Lory Green to support her general damages assessment. In general, this evidence suggests that she became socially withdrawn as a result of her dysphotopsia. This impacted her relationship with her son. Ms. Ellsworth testified that she believes her son began hiding things from her after her surgeries because he did not want to add to her struggles. As a result, her relationship with her son suffered. She believes her son grew frustrated with her inability to get involved with his activities. She used to be able to contribute to his social life by driving him places. Now she does not drive. She testified that she used to talk to Ms. Sparling every day. Now she may go months without speaking to her. She also testified that she now lacks the confidence to try new things. Her lack of confidence has made dating nearly impossible.

[232] Ms. Ellsworth testified that she no longer has friends over. Preparing her home for visitors has become too stressful and the stress ‘takes the fun out of it’. Ms. Ellsworth also testified that she avoids visiting friends because leaving her house is too difficult.

[233] It is Ms. Ellsworth’s position that her career options are likewise limited as a result of her dysphotopsia. Ms. Green testified that the Plaintiff’s employer has done a lot to accommodate Ms. Ellsworth’s limitations. However, her error rate at work has increased and she no longer enjoys the job security she once had. In addition, Ms. Ellsworth testified that the prospect of her losing her job is frightening because she does not believe she could work elsewhere.

[234] Ms. Ellsworth also testified that her dysphotopsia has caused her to experience a great deal of stress. She testified that she saw a doctor regarding tightness in her chest. The test she underwent came back normal, but the Plaintiff believes that this tightness was related to stress.

[235] It is uncontested that Ms. Ellsworth enjoyed a number of hobbies prior to the surgeries. Foremost among her hobbies was cycling. She had been a member of a cycling team in high school. She no longer rides a bike. Her balance is off due to her dysphotopsia and this makes her too nervous to ride a bike. She no longer skates for the same reason. Ms. Ellsworth also enjoyed needlepoint, knitting and crocheting prior to her surgeries. She testified that she has avoided these activities for seven years. Ms. Ellsworth enjoyed baking and cooking prior to her surgery. She testified that she now has to be extremely careful when baking or cooking. Ms. Ellsworth used to enjoy cleaning. She frequently misses spots when she cleans now. She now does her makeup primarily from memory, and often makes mistakes which she counts on her coworkers to correct.

[236] The Plaintiff also claims lost income. Firstly, the Plaintiff lost an estimated $2,000 in income by missing work as a result of the cataract surgeries. Secondly, the Plaintiff claims lost income relating to her inability to return to dental assisting as a result of her dysphotopsia.

[237] The Plaintiff argues that she would have returned to a full-time position as a dental assistant if not for her dysphotopsia. She had spent approximately 2.5 years as a dental assistant. She left that position out of concerns for her son and his academic struggles. Prior to that, she had over 12 years’ experience working in dental offices as a receptionist. She took the courses necessary to qualify as a dental assistant. The Plaintiff testified that she always intended to go back to working as a dental assistant. She expressed this intent to her son and Ms. Sparling. She needed the money because she was no longer receiving child support from her son’s biological father, and was no longer in a relationship. Although she would have needed time to requalify, the Plaintiff submits that 2010 is a reasonable estimate of what her return date would have been. The Plaintiff submits, and testified, that she would be unable to perform as a dental assistant with her current visual impairments. The Plaintiff claims $133,507 in past lost income. She claims $72,213.75 in lost future income. In the alternative, the Plaintiff claims that she would have at least found a part-time position as a dental assistant. In that case, she claims $81,735 for past losses and $36,461.88 for future losses.

[238] In addition, the Plaintiff claims a loss of competitive advantage. The Plaintiff submits that it would be unfair to assume that she can maintain her current income level given the insecurity of her employment and her inability to find alternative employment. The Plaintiff claims $50,000 to compensate her for the possibility that she may lose her current job and be unable to find similar employment elsewhere. The Plaintiff relies on the case of Kobzey v. Paziuk, 2009 ABQB 695.

[239] The Plaintiff claims damages for future care costs. The Plaintiff’s expert, Ms. Anne-Marie McDonough, provided evidence regarding Ms. Ellsworth’s need for home care. In Ms. McDonough’s opinion, Ms. Ellsworth is unable to perform home maintenance effectively. She recommends limited assistance with cleaning and home maintenance, including help with annual or bi-annual tasks.

[240] Ms. McDonough also suggested some assistive devices, other task type assistance, and a course of occupational therapy intervention. This assistance will help address Ms. Ellsworth’s discomfort with new places and her difficulty in getting around, including the difficulties she testified to with regard to public transit. These problems prevent Ms. Ellsworth from taking part in any meaningful, enriching activities and limit her to those activities which are basic and necessary.

[241] The occupational therapy intervention recommended by the Plaintiff’s experts includes an occupational therapist, a rehabilitation therapy support worker, a personal support worker and a case manager. This assistance will allow Ms. Ellsworth to get involved in regular leisure activities and enjoy ‘one off’ experiences like a Blue Jays game or a visit to an art gallery.

[242] The Plaintiff estimates that her future care costs will total $359,758. This is the present value of her future care costs in 2015 dollars.

iii) Damages – The Defendant’s Position

[243] The Defendant disputes the Plaintiff’s general damages assessment. The Defendant argues that the Plaintiff’s assessment of general damages is excessive given the fact that her impairment is partial and potentially temporary. The Defendant cites Gyori v. Puddy, 1998 CarswellOnt 3507 (Gen. Div.), where a plaintiff with a severe permanent visual impairment was awarded $34,841 in general damages.

[244] The Defendant submits that Ms. Ellsworth had no demonstrated intention to return to dental assisting. She only worked in the field for 2.5 years. She has not worked in that field for 13 years. She did not keep her certification current or continue to pay any membership fees. She never sent out any resumes or job applications towards securing a position as a dental assistant. She is happy with her current job and has made friends with her coworkers.

[245] The Defendant’s expert, Ms. Christie MacGregor, testified that Ms. Ellsworth would have had to complete numerous certifications to return to dental assisting. This lessens the probability that she would have made such a return.

[246] The Defendant’s expert also testified that Ms. Ellsworth would be able to return to the field if she really wanted to. Her visual impairments would not prevent this. Ms. MacGregor, a vocational expert, provided evidence that Ms. Ellsworth could perform the tasks required of a dental assistant.

[247] The Defendant submits that the Plaintiff’s loss of competitive advantage claim is speculative. The figure of $50,000 is speculative. The Defendant submits that her job is secure. Ms. Green testified that Ms. Ellsworth recently received a raise and characterized her as irreplaceable. In addition, Ms. MacGregor testified that Ms. Ellsworth’s experience at the Follicle would be readily transferable and she would likely be able to secure comparable employment elsewhere.

[248] The Defendant also disputes the Plaintiff’s future care claims. The defence’s biggest concern with these claims is that they are based on self-reports from the Plaintiff. Neither of the Plaintiff’s experts observed her in her community and simply took her at her word. According to the Defendant’s expert, Ms. Angela Flemming, the Plaintiff has no need for any kind of support worker or case manager.

[249] The Defendant disputes some of the personal care items recommended by the Plaintiff’s expert. The Plaintiff does not need a computer because she has a tablet. She does not need taxi money because she did not own a car before the surgeries and thus had to pay for taxis in any event.

iv) Damages – The Law

1. The Court Needs Cogent Evidence to Award Damages

[250] The Plaintiffs have the onus of providing this Court with cogent evidence upon which to assess damages. The Court cannot award damages by filling evidentiary gaps in the Plaintiffs’ case. This is particularly true given that evidence of the Plaintiff’s damages lies much more exclusively in the control of the Plaintiffs, particularly in a case such as this where the complaints are impossible to test objectively.

[251] In Martin v. Goldfarb (1998), 1998 4150 (ON CA), 41 O.R. (3d) 161 (C.A.), the Ontario Court of Appeal addressed a lack of evidence underlying the damages awarded by a trial judge in the context of a breach of fiduciary duty claim between a lawyer and his client. The Court, at para. 75, distinguished between damages that are difficult to calculate due to complexity, and damages that are difficult to calculate due to the lack of evidence led by a plaintiff:

The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.

[252] In Keith v. Abraham, 2011 ONSC 2, a medical negligence action, Brown J. (as he then was) noted, at para. 387, the following after reviewing the jurisprudence about the need for an evidentiary foundation for damages:

I do not understand those directions (from the cases) to remove from a plaintiff the obligation to adduce evidence to prove his damages. Mr. Keith failed to place before this court key evidence about the financial affairs of Orbex during its years of operation or about the funds that he advanced to, or the funds that he drew from, Orbex during that period of time. The missing documentation which I enumerated above is basic stuff, fundamental to proving a claim for pecuniary damages of the sort advanced by Mr. Keith. Its absence, without an adequate explanation, raises questions in my mind about whether it might show a state of affairs at variance in some ways with that painted by Mr. Keith. I need not go down that route. While I suspect that Mr. Keith did lose some money investing in Orbex, I conclude he has failed to establish, on a balance of probabilities, the amount of any lost investment of personal funds in Orbex, as a result of which I would assess his damages only in the nominal amount of $5,000.00.

[253] In the context of future care costs, in Greenhalgh v. Douro-Dummer (Township), 2009 71014 (ON SC), [2009] O.J. No. 5438 (S.C.), Lauwers J., at para. 488, held that “an award of costs for future care should be made where there is a ‘substantial possibility’ based upon expert or cogent evidence that the need for such care will arise in the future. The possibility must be “realistic as opposed to a speculative possibility.””

[254] Likewise, in Degennaro v. Oakville Trafalgar Memorial Hospital, 2011 ONCA 319, the Ontario Court of Appeal confirmed that an award for future care costs must be supported by evidence, otherwise it cannot stand. Moreover, the evidence must demonstrate medical “need” for the care sought.

[255] In Degennaro, the Court of Appeal reduced the future care award by 50 per cent due to the insufficient evidence regarding future need.

2. General Damages

[256] In assessing general damages, the Court should be guided by the Court of Appeal’s comments in Graham v. Rourke (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622, at para. 68:

In arriving at a global figure which represents the nonpecuniary loss to the plaintiff, a trial judge will consider real and substantial future possibilities, both positive and negative, which could impact on the plaintiff's quality of life. These considerations will be reflected in the figure which the trial judge arrives at in his assessment of general nonpecuniary damages. There is no need, as there may be in cases of future pecuniary losses, to translate these possibilities into a percentage figure and to adjust the assessment accordingly.

[257] As stated by Dickson J. in Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, at para. 87, “The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.”

3. Lost Earnings

[258] Assessing