COURT FILE NO.: CV-12-108724 DATE: 20170113 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SARAH SALISBURY, MARGARET ROSE SALISBURY and CHRISTOPHER RIZZO Plaintiffs – and – DR. STEPHEN KRAFT, DR. ANGELA TAMBLYN, DR. PETER HO KWONG MAK, DR. UMANG PATEL, DR. BASEER UDDIN KHAN, DR. DAYLE A. SIGESMUND, DR. ANDREW STAPLETON, TORONTO GENERAL HOSPITAL, TORONTO EAST GENERAL HOSPITAL, TORONTO WESTERN HOSPITAL and THE HOSPITAL FOR SICK CHILDREN Defendants

Counsel: Russell J. Howe for the Plaintiffs Christopher Hubbard and Andrew Kalamut for Dr. Stephen Kraft No one appearing for any of the additional Defendants

HEARD: January 6, 2017

Reasons for Decision

Boswell J.

Overview

[1] Sarah Salisbury suffers from a condition that ophthalmologists call “exotropia”, which means one of her eyes is off-centred and points at an outwards angle. Laypeople often refer to the condition as a “lazy eye”. In 2001 she had corrective surgery known as strabismus surgery. Strabismus surgery involves cutting some of the muscle tissue around the eye to release it, allowing it adjust back into a centred position. The surgery was performed by Dr. Stephen Kraft and the results were quite positive.

[2] By 2009 Ms. Salisbury’s eye was drifting again. Her optometrist, Dr. Patel, recommended that she have further surgery. At her request she was referred back to Dr. Kraft. Doctor Kraft performed further strabismus surgery in early 2010. While it appeared to have been completed without complication, Ms. Salisbury reported afterwards that she was experiencing double vision (diplopia). That double vision has proven to be intractable and it has profoundly impacted her life. She has lost her ability to read and to drive. She has also lost her employment as a personal support worker. She now receives a CPP disability benefit.

[3] Ms. Salisbury sued Dr. Kraft in negligence. She sued a number of other parties as well, but they were never served with the statement of claim. Dr. Kraft moved for summary judgment on the claim, asserting that it disclosed no genuine issue requiring a trial. The motion came on before Justice Mullins in August 2016. At that time Ms. Salisbury, through counsel, conceded that there was no compelling evidence that the strabismus surgery had been performed negligently or that there were any shortcomings in her post-operative care. It was agreed between the parties that the only issue remaining was whether there had been informed consent to the procedure. Accordingly, Mullins J. dismissed all of the plaintiff’s liability claims against Dr. Kraft save for the (lack of) informed consent claim and the summary judgment motion was put over for argument focusing on that issue.

[4] The issue for determination is, therefore, whether the informed consent claim raises a genuine issue requiring a trial, or whether it may be disposed of summarily.

The Legal Framework

Summary Judgment

[5] Dr. Kraft’s motion is brought pursuant to Rule 20.01 of the Rules of Civil Procedure. That rule permits a defendant to move for summary judgment dismissing all or part of a claim, following delivery of a statement of defence.

[6] Pursuant to Rule 20.04(2)(a), the court is directed to grant summary judgment if the court is satisfied that there is no genuine issue with respect to a claim that requires a trial to resolve. It is now well-settled that the current iteration of Rule 20.04 significantly enhances the court’s ability to resolve actions summarily, where it is in the interests of justice to do so. Rule 20.04(2.1) provides the court with the discretionary power to weigh evidence, evaluate credibility and/or draw reasonable inferences from the evidence when assessing whether a genuine issue requiring a trial exists.

[7] The letter and spirit of the rule were recently examined by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7. Justice Karakatsanis, for a unanimous court, spoke of the need for a shift in culture – in how cases are adjudicated – in order to “manage the legal process in line with the principle of proportionality” and thereby enhance access to justice. (Para. 32). At the same time she affirmed the principle that the process of adjudication must remain fair and just. She observed that “a fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.” (Para. 28).

[8] The Supreme Court provided a road map for how Rule 20.04(2) should be applied. First, the motions judge must determine if there is a genuine issue requiring a trial based only on the evidence filed on the motion, without resort to the enhanced fact-finding powers described in Rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner. If no genuine issue requiring a trial exists, judgment should be rendered accordingly.

[9] On the other hand, should the motions judge conclude, at the initial stage, that a genuine issue for trial exists, then he or she should consider whether the need for a trial may be avoided by resort to the enhanced fact-finding powers set out in Rule 20.04(2.1). The motions judge may utilize those powers, in his or her discretion, unless doing so would be contrary to the interests of justice.

[10] In assessing whether a genuine issue requiring a trial exists, courts will continue to apply certain principles that were developed under the old iteration of Rule 20. For instance, as Diamond J. noted in Penretail Management Ltd. v. 2380462 Ontario Inc. (o/a Bolton Health Centre), 2016 ONSC 600, at para 10:

…The motions judge must still take a "hard look" at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its "best foot forward" and submit cogent and compelling evidence to support or oppose the relief sought. A moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial. It is the moving party's obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.

Claims Based on a Lack of Informed Consent

[11] The plaintiff’s claim, as constituted after the ruling of Mullins J., is that Dr. Kraft, “failed to obtain informed consent from Sarah by failing to explain the risks associated with right strabismus repair surgery and other medical procedures performed, which Sarah would not have agreed to if she had known the risks.” (Amended Statement of Claim, para. 19(A)(d.1)).

[12] To succeed on her claim, the plaintiff must establish two things:

(a) That Dr. Kraft failed to adequately disclose to her available treatment options and/or the material risks of surgery; and,

(b) That Dr. Kraft’s failure to disclose treatment options and/or material risks caused her damages.

See Reibl v. Hughes, [1980] 2 S.C.R. 880; Nichols v. Young, [2002] O.J. No. 515 (S.C.J.) aff’d [2003] O.J. No. 4376 (C.A.).

[13] The test for causation, in turn, involves two parts. The first is subjective; the second is a modified objective test: Reibl v. Hughes, as above; Arndt v. Smith, [1997] 2 S.C.R. 539. The parties agree that the two part test was accurately summarized by the Court of Appeal in Bollmon v. Soenen, 2014 ONCA 36, where Benotto J.A. wrote, at paras. 21-23:

The subjective test is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the individual. The objective test is based on what a reasonable person in the respondent's position would have done. Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent.

The subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning. A patient could be inclined to say that he or she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action had been known. As stated in Reibl v. Hughes, at p. 898:

[T]o apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.

The objective test is based on reasonableness, as stated in Reibl v. Hughes, at p. 900:

In short, although account must be taken of a patient's particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.

[14] Having regard to the two part test for causation, the plaintiff’s burden might more accurately be expressed as comprising of three prongs:

(a) She must establish a breach of Dr. Kraft’s disclosure obligation;

(b) She must establish that, subjectively, she would not have agreed to the procedure had Dr. Kraft’s breach not occurred; and,

(c) She must establish that her subjective position is objectively reasonable in the circumstances.

The Positions of the Parties

[15] The position of the moving party, Dr. Kraft, is straightforward. His counsel submits that the prevailing circumstances make it impossible for the plaintiff to satisfy the modified objective test for causation. He argues that her case fails on that prong alone.

[16] Beyond that, however, Dr. Kraft asserts that there is compelling evidence, in the form of his contemporaneous notes and records and in his invariable practice, that he provided adequate disclosure to the plaintiff of the options available to her and the material risks associated with those options. The plaintiff signed an informed consent form, acknowledging that her options and the risks associated with them had been explained to her and authorizing Dr. Kraft to proceed with the surgery.

[17] In short, Dr. Kraft asserts that the plaintiff is unable to satisfy at least two of the requisite three pillars of an informed consent claim and that there is, therefore, no genuine issue requiring a trial to resolve.

[18] The plaintiff’s position is that there is conflicting evidence about disclosure and that the court ought not to attempt to resolve that conflict on a motion. Given the stakes involved and the importance of the matter to the plaintiff, a full trial would not be a disproportionate model for resolution in this instance.

[19] Moreover, the circumstances do not, in the plaintiff’s submission, make it clear that she will not succeed on a modified objective test for causation.

Discussion

[20] The court is very sympathetic to Ms. Salisbury’s situation. The outcome of her strabismus surgery has been profoundly negative and disabling. The tendency towards recrimination is strong in these circumstances. Still, in my view, the plaintiff cannot succeed on her claim, for precisely the reasons articulated by defence counsel.

[21] The plaintiff’s claim withers on the modified objective test for causation. The court is in a reasonable position to apply this test on the evidence filed in connection with the summary judgment motion and without resort to the enhanced fact-finding powers set out in Rule 20.04(2.1).

[22] The following uncontroversial circumstances were prevalent at the time the plaintiff was called upon to make her election as to treatment:

(a) The plaintiff had experienced issues with a lazy eye her whole life. In 2001 she was 19 years old and working at Tim Horton’s. She was having difficulty because customers would come in and, in her words, “nobody would know who I was looking at.” She was embarrassed and felt awkward in social situations. She opted to have strabismus surgery in 2001. It was performed by Dr. Kraft and she experienced a very good outcome. It was a life-changing experience for her;

(b) Though she could not recall any of the discussions she had with Dr. Kraft in 2001 about the risks associated with the surgery, she was well aware that the surgery involved a general anesthetic and a surgical cutting of some of the muscle tissue around her eye;

(c) By 2009 she was experiencing problems with her eye again. It was drifting. She was again experiencing awkwardness in social and work settings. But what was most concerning for her was that she was having vision problems while driving at night. The centre line of the road appeared to her to be bouncing back and forth. She was concerned with her safety while driving;

(d) She met with her optometrist, Dr. Patel, in the fall of 2009. She trusted him. She discussed with him the option of using prisms with her glasses. He told her it was a poor option – a “Mickey Mouse” solution. He recommended surgery. She asked to be referred back to Dr. Kraft given her past positive experience with him. In other words, the purpose of the referral was for further surgery;

(e) It is generally accepted that the options available to the plaintiff in 2009 were to (1) do nothing; (2) utilize prisms with her glasses; (3) receive Botox injections in her eye; or (4) undergo strabismus surgery;

(f) The plaintiff clearly was not content to do nothing. She trusted Dr. Patel’s opinion that prisms were not a reasonable solution. She said that Dr. Kraft did not discuss Botox injections with her but in any event, she gave evidence on discovery that she would not have agreed to injections in her eye because that would be too scary for her. Moreover, Botox injections offered only a temporary solution;

(g) Both Dr. Patel and Dr. Kraft recommended surgery; and,

(h) The risks associated with strabismus surgery were low. They were described in some detail by the defendant’s expert witness, Dr. Michael O’Connor. He testified that the risk of serious complication – infection, bleeding inside the eye, permanent vision loss – is low. These would be rare outcomes, though difficult to calculate. He also said the risk of double vision would be low. Moreover, the risk of double vision with Botox injections would be similar to that associated with strabismus surgery.

[23] There is an apparent disagreement between the plaintiff’s expert, Dr. Gregory-Evans and the defendant’s expert, Dr. O’Connor, on the question of whether surgical risks are heightened in second and subsequent surgeries. Dr. Gregory-Evans wrote a report in which he indicated that the risks of all ocular complications, including diplopia, are all significantly raised in second and subsequent procedures. Dr. O’Connor filed an affidavit in response in which he indicated that Dr. Gregory-Evans was incorrect. He said he was not aware of any research literature supportive of Dr. Gregory-Evans’ position and further, that it did not make intuitive sense.

[24] I am not able to resolve the dispute between the physicians on this record. That said, in my view, it is unnecessary to do so. For the sake of argument, I will accept that there is a heightened risk of complications associated with a second surgical procedure. The extent of the risk has not been particularized, but I will assume that Ms. Salisbury should have or would have been advised of a heightened risk.

[25] I still conclude that a reasonable person in her position would have opted for the surgery. There was simply no other reasonable alternative available to her. Botox injections would have been the next best thing, but she was afraid of them and, in any event, they were only a temporary solution and not without their own risks.

[26] Dr. O’Connor deposed that in his experience with strabismus surgery, he has never had a patient decline the surgery even after being advised of the risk of permanent diplopia.

[27] The law does not define the characteristics of the “reasonable person”. But certainly such a person is not extraordinarily timid, nor is she reckless. She is a person of ordinary sense and prudence. On the evidence before me, which I am entitled to assume will be the same as the evidence presented at a trial, a reasonable person in Ms. Salisbury’s shoes, would clearly have opted for the surgery, particularly in view of a positive past experience with it.

[28] In view of this conclusion, the plaintiff cannot successfully make out her claim and the motion for summary judgment must succeed.

[29] In the interests of fullness however, I will continue with an alternative analysis, had I found that, on the existing record, a genuine issue requiring a trial exists. I would, in those circumstances, exercise my discretion to utilize the enhanced fact-finding tools made available by Rule 20.04(2.1). In my view, it is in the interests of justice to utilize those tools in this case by reason of the following:

(a) This is not a “close call” case. When the evidence is scrutinized with a careful eye, it is readily apparent that the plaintiff will be unable to make out her case at trial; and,

(b) Though this is a very important case to the plaintiff, and though access to justice issues are not in directly in play, it remains pointless and inefficient to tie up two weeks of trial time to establish what, in my view, is a foregone conclusion. There would be no benefit to incurring the costs associated with a trial in this case.

[30] The principal difficulty for the plaintiff is that she bears the onus to establish, on a balance of probabilities, that Dr. Kraft breached his obligation of disclosure to her. She is unable to meet that onus.

[31] The plaintiff concedes that she does not remember half of what she discussed with Dr. Kraft. She claims, however, to remember that he did not discuss with her the option of Botox, nor did he talk to her about the risks associated with general anesthesia or other complications such as, notably, permanent diplopia.

[32] According to the plaintiff, Dr. Kraft told her that the risks associated with strabismus surgery were that her eyes would get better, or stay the same. This evidence is hugely problematic. While it is not impossible that Dr. Kraft said such a thing, it is incredibly unlikely. For starters, it amounts to a declaration that this is risk-free surgery. No sane and sober surgeon would ever make such a declaration. There is no such thing as risk-free surgery.

[33] Second, it flies in the face of Dr. Kraft’s training and experience, not to mention his standard practice. Dr. Kraft has performed many hundreds of surgeries. He has a standard practice in terms of reviewing options and risks with patients. He has gone to the trouble of preparing a page long information form that discusses the risks of strabismus surgery. He has a webpage that does the same. He is well-familiar with the options available to patients and the risks associated with those options.

[34] I would not say that the plaintiff is not a credible witness. Having read the transcript of her cross-examination, I am of the view that she was a sincere witness, trying her best to be accurate. But credibility is not the end of the story. An otherwise credible witness may yet provide unreliable evidence. Credibility and reliability are not the same thing. Credibility has to do with veracity. Reliability relates to accuracy – in other words, it involves the witness’ ability to accurately observe, recall and recount events: R. v. C. (H.), 2009 ONCA 56, at para. 41.

[35] Ms. Salisbury conceded that she does not have a fulsome memory of the discussions she had with Dr. Kraft in late 2009 and early 2010. To find her evidence about the lack of disclosure reliable, the trier of fact would have to find that Dr. Kraft essentially abandoned his usual practice in terms of risk disclosure and also entirely abandoned his professional obligation to her.

[36] Not only that, but Dr. Kraft kept contemporaneous notes of his discussions with her. In October 2009 he noted that he had discussed various options including doing nothing, receiving Botox injections and doing surgery. He noted that Ms. Salisbury wanted the surgery without adjustable suture. He noted that he discussed with her the risks of anesthesia, diplopia, infection, vision loss and under or over correction.

[37] In March 2010 he noted that he had similar discussions with her.

[38] To accept the plaintiff’s version of disclosure, or the lack thereof, the trier of fact would also have to reject the authenticity and/or accuracy of Dr. Kraft’s notes. There is no basis in the evidentiary record to do so.

[39] Both the plaintiff’s expert, Dr. Gregory-Evans, and the defendant’s expert, Dr. O’Connor, agreed that if the options and risks reflected in Dr. Kraft’s notes were in fact conveyed to the plaintiff, then Dr. Kraft complied with his disclosure requirements and the plaintiff’s signed consent to surgery was an informed one.

[40] To sum up, on the one hand the plaintiff says that she does not remember half of what she discussed with Dr. Kraft, but does remember him telling her, in essence, that this was no risk surgery. On the other hand, the defendant is a very experienced eye surgeon with an invariable practice as to disclosure and detailed written records of his disclosure discussions with the plaintiff.

[41] I reference a famous reflection on the assessment of evidence found in a 1951 decision of the British Columbia Court of Appeal. In Faryna v. Chorny, [1952] 2 D.L.R. 354, Justice O’Halloran described the assessment process as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

[42] While O’Halloran J.A. spoke of “credibility”, it is obvious from his decision that he folded the concepts of credibility and reliability together. The important take-away is that a witness’ evidence must be subjected to the probabilities that surround the case as a whole. In the instant case, there is simply no way that the plaintiff’s evidence of “no risk” surgery will stand up to scrutiny when subjected to the probabilities of the case as a whole, which include Dr. Kraft’s usual practice and the detailed contemporaneous notes he took.

[43] I recognize that the plaintiff produced two witnesses who each said that they attended with the plaintiff at one or another appointment with Dr. Kraft. I do not find their evidence to be particularly helpful. Neither witness was there for all of the plaintiff’s meetings with Dr. Kraft and neither had a particularly strong recollection. Mr. Rizzo, for instance, was insistent that he accompanied the plaintiff to a visit that took place in the month of July when he was on annual leave from his employment. The plaintiff’s appointments with Dr. Kraft took place in October and March. The plaintiff did have July appointment with another physician. In any event, even if Mr. Rizzo was confused about the date, he also said he spent much of the appointment in the waiting room.

[44] The other witness, Ms. Lees, at one time insisted she had not been to any visits, then later said she had been to one. With respect to the one visit she attended, she claimed that there were indeed discussions with Dr. Kraft about the risk of vision problems and in this sense I find her evidence somewhat contradictory to that of Ms. Salisbury. She does, on the other hand, appear to corroborate the plaintiff’s position that Dr. Kraft said there were no risks of permanent vision problems. If Dr. Kraft had indeed said what Ms. Lees suggests, he would significantly be understating the risks of surgery. This strikes me, again, as highly unlikely. There is no reason for Dr. Kraft to do so; doing so would be contrary to his usual practice and professional obligations; and it would be entirely inconsistent with his contemporaneous notes.

[45] In the final analysis, I find that on the existing record, there is no genuine issue requiring a trial. The plaintiff is unable to establish that her subjective position, to wit, that she would not have had the strabismus surgery had she known of the risk of diplopia, is objectively reasonable. It is arguably not even subjectively plausible. She deposed that she would not have had the strabismus surgery if there was even a one in a billion chance of permanent diplopia. Such a position strikes me as self-serving hindsight.

[46] Were I to utilize the enhanced fact-finding powers set out in Rule 20.04(2.1), I would not only find that the plaintiff’s case fails on the causation test, but I would also find that she is unable to make out a breach of Dr. Kraft’s disclosure obligations.

[47] In the result, I conclude that there is no genuine issue here that requires a trial. The plaintiff’s claim is therefore dismissed.

[48] I understand that the defendant is not seeking costs. There will accordingly be no order for costs.

Released: January 13, 2017 Boswell J.