COURT FILE NO.: CV-12-447058

DATE: 20180528

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALBERT SOLOMON

Plaintiff

• and -

READ MOHAMED ALI ABUGHADUMA, THE SCARBOROUGH HOSPITAL, GENERAL SITE; JOHN DOE and JANE DOE

Defendants

Ronald Manes and Nicholas Sampson, for the Plaintiff

Anu Koshal and Caroline Humphrey, for the Defendant Dr. Read Mohamed Ali Abughaduma

HEARD: April 9, 11, 12, 13, 2018

J. WILSON J.

The Action

[1] This is an action for medical malpractice raising the issue of informed consent. All claims, except this remaining issue against the surgeon, have been dismissed or withdrawn.

[2] The Plaintiff, Albert Solomon, had an elective total wrist fusion surgery that was not successful.

[3] The Plaintiff is an ex-convict. He was last in Kingston Penitentiary in 1975. After his dubious beginnings, he found that he had a special gift: a talent for golf. In his first year of play he broke 80. He could not join the professional circuit due to his checkered past. However, since 1975 the Plaintiff made his living teaching golf, and hustling golf games betting for money. Golf for him was his life.

[4] The Plaintiff, age 73 at the time of the surgery, had problems for several years with pain and with cocking his wrist: a move essential for golf. He tried conservative treatments. Cortisone worked well, but was temporary. The pain was a significant problem in his daily life and when he played golf.

[5] As he was entering what he called his "twilight years" the Plaintiff decided to "get serious" to do something to improve the pain, but to still let him play competitive golf. The Plaintiff, with his son, did research on the internet and found that wrist fusion surgery may assist. The surgery he saw on the internet did not involve a metal plate. Prior to the surgery, he had very limited flexion and extension in his wrist, but he could still cock his wrist allowing him to play golf, though with pain. He was teaching golf at the time of his surgery, and was planning on obtaining an international license to teach in China post-surgery. His past did not prevent him from obtaining such a license.

[6] The Defendant Dr. Read Mohamed Ali Abughaduma (the Defendant), an orthopedic surgeon with a specialty in upper extremity surgery performed a total wrist fusion. This surgery completely ends flexion and extension of the wrist joint and renders the joint essentially immobile as a metal plate is placed over the joint secured by screws. With an immobile wrist it would not be possible to cock the wrist as required for the Plaintiff’s golf game.

[7] The Plaintiff developed RSD: chronic regional pain syndrome which is the constant misfiring of the sympathetic nervous system causing considerable pain and loss of function. RSD is a rare but unfortunate risk inherent with all surgeries.

[8] This condition meant that post-surgery the Plaintiff had no movement in his wrist, and also that he lost the functional use of his fingers. His pain increased. He had what he called a "lobster claw" instead of functional fingers. He could not hold or grip a golf club. He could not cock his wrist. The loss of use of his fingers and the lobster claw configuration was a result of the RSD. He could not play golf. The Plaintiff did not know until after the surgery that a metal plate had been inserted in his wrist preventing any movement of the wrist. He is a right handed golfer. It was essential to him with the limited movement that he had prior to the surgery that he be able to cock his left wrist to play and teach golf.

[9] The Plaintiff had a second corrective surgery with Dr. Axelrod which resulted in some improvement. He removed the metal plate and released the claw like fingers.

[10] The Plaintiff's position is that he was not provided with adequate disclosure prior to embarking on the elective surgery of the risks and benefits of a total wrist fusion. Surgical options less drastic than a total wrist fusion that allowed some wrist movement were not discussed. He thought he was getting a different fusion operation without a metal plate.

The Medical Malpractice Claim

[11] This proceeding was initiated in February 2012, as a Simplified Procedure matter. The Plaintiff claims $90,000.00 in damages.

[12] The claim for negligence in the surgery and medical care against the Defendant was dismissed in a motion for summary judgment in December 2015 by Myers, J.. The Plaintiff did not have a medical expert confirming that the Defendant was negligent. In the motion for summary judgment he was representing himself.

[13] Justice Myers did not dismiss the issue of informed consent. He stated:

[15] As discussed by the Court of Appeal in para. 1 of Videto above, expert evidence of prevailing standards is but a factor in the analysis. The essence of the analysis is fact-based and much turns on what the patient may have asked the doctor. If, for example, Mr. Solomon says that he told Dr. Abughaduma that he saw a particular operation on television and he wanted to know about that surgery, might the burden to adduce expert evidence not fall to the doctor to establish that the surgery that Mr. Solomon saw was not available to him or that putting a plate in Mr. Solomon's wrist was the only available surgery to treat Mr. Solomon's concerns? Perhaps all of these issues were discussed as between surgeon and patient and a decision was made on full disclosure. Mr. Solomon said in his submissions that he had no idea that he was to have a metal plate implanted in his wrist. Whether that assertion survives an evidentiary hearing remains to be seen.

Legal Representation

[14] At the opening of this trial the Plaintiff was self-represented. After inquiry, Ronald Manes, a volunteer and founding member of Pro Bono Ontario agreed to act for the Plaintiff, stepping into the breach on one days’ notice. I am very grateful for the assistance of Pro Bono Ontario as well as counsel for the Plaintiff. I also thank counsel for the Defendant for their cooperative professionalism assisting Mr. Manes by providing the case file and background information.

[15] The services offered by the volunteer lawyers of Pro Bono Ontario reflect the finest traditions of the legal profession.

Position of the Parties

[16] To succeed on the issue of informed consent the Plaintiff must prove each of the following three elements:

1. That the Defendant failed to adequately disclose the risks or treatment options for the surgery; and

2. That the Plaintiff would not have consented to the surgery had he been properly informed as to the risks; and

3. That a reasonable person in the Plaintiff's position would not have consented to the surgery had he or she been properly informed.

[17] It is the Plaintiff's position that if he had been provided adequate disclosure about the nature of the surgery to be performed, he would not have had the total wrist fusion surgery. He would have opted for one of the other potential surgical options that were less drastic and were not explained to him. These alternative surgeries would not totally eliminate his wrist movement. He may have continued with conservation non-surgical treatment.

[18] He argues that a reasonable person in his shoes, with golf as his source of income and focus of his life, would not have had the surgery, or would have opted for another surgical option that did not completely eliminate his range of motion in his wrist enabling to cock his wrist for golf.

[19] The Plaintiff relies on the evidence of the second surgeon, Dr. Axelrod, an experienced upper extremity and hand orthopedic surgeon. The Plaintiff is still not at his level of function that he had prior to the wrist fusion surgery.

[20] The Defendant does not dispute that the only surgical option discussed between the Plaintiff and the Defendant was a total wrist fusion.

[21] It is the defence position that the disclosure by the Defendant was adequate, though the defence candidly concedes there is a live issue on this question.

[22] The defence relies on the evidence of the Defendant as well as, the evidence of Dr. von Schroeder. He testified for the defence and was qualified for the first time as an expert on informed consent. He confirmed that the Defendant met the test of providing adequate information to the Plaintiff applying the test of an average orthopedic surgeon in 2010.

[23] Even if the disclosure was not adequate, the defence argues that the Plaintiff cannot prove a causal connection between the alleged wrong and any damage, as the Plaintiff cannot meet either the subjective or the objective test confirmed in the case law.

[24] If the Plaintiff had been informed of all the surgical options and all the risks of surgery, it is the defence position that considering both the subjective and the objective test, that he would have decided to have the total wrist fusion procedure. The defence relies on the evidence of Dr. von Schroeder for both the subjective and the objective test in support of the Defendant's position. Dr. von Schroeder has patients who are golfers and have opted for this surgery and are able to play better golf afterwards.

[25] The defence argues that this is a classic case of hindsight because of an unsuccessful surgery, not related to the issue of informed consent.

Disputed Factual Issues

[26] There are three areas of factual dispute including:

1. There is some modest dispute between the Plaintiff and the Defendant as to what was discussed at the consultation meeting on January 27, 2010 prior to the surgery relevant to informed consent, as well as the meetings following the surgery.

2. The dispute about surgical options is linked to the severity and extent of the Plaintiff's arthritis in his wrist at the time of the surgery. Dr. Axelrod upon reviewing the x-rays found there was moderate arthritis in the wrist, whereas Dr. von Schroeder accepted the diagnosis of the Defendant of severe generalized wrist arthritis.

3. There appears to be a dispute between the two experts, Dr. Axelrod, and Dr. von Schroeder whether there were other viable surgical options short of a full wrist fusion that were available to the Plaintiff, although when Dr. von Schroeder read the transcript of the evidence of Dr. Axelrod, he testified that he did not disagree with Dr. Axelrod’s evidence.

[27] I will outline my findings on credibility and reliability of the Plaintiff and the Defendant, followed by the factual chronology. I will outline my conclusion on the contested factual issues outlined above. I will review the legal principles applicable in this case. I will then outline my findings on the credibility and reliability of the expert evidence. I will then outline the expert evidence and my factual findings, followed by my conclusions.

Credibility and Reliability of the Plaintiff and the Defendant

[28] The Plaintiff is a character. He is now 80 years old, though is young for his age, has a very good memory and is in good health. He has a clear recollection of the lead up to and the initial visit with the Defendant and the events following. For him, this meeting, and the decision whether to have the surgery was a major life event. He is a straight shooter. His answers were fair. He did not exaggerate and conceded the obvious. He has a specific memory of the meeting with the Defendant. He was a credible witness, in spite of his past.

[29] The Defendant had virtually no memory of the meeting with the Plaintiff. For him this was a routine meeting. This case illustrates why it is so critically important that doctors carefully make adequate notes relevant to disclosure and informed consent.

[30] The Defendant relied on his notes, and when he could not remember a fact, relied upon his usual practice. Case law confirms that usual practice is cogent evidence.[^1] The Defendant's handwritten notes of the initial meeting are very brief. His dictated notes made shortly thereafter contain more detail, but also contain important errors.

[31] The handwritten note shows hand flexion of 20 degrees, whereas the dictated note shows 15 degrees. I conclude that the handwritten note made at the time of the meeting with the Plaintiff when the measurements were taken is likely more accurate.

[32] The handwritten note contains no information about lifestyle, work and activities of the Plaintiff. The dictated note indicates that the Plaintiff was "active in hockey". Clearly this is an error, which is important in the context of an informed consent in this case. The Plaintiff is not a hockey player. The Plaintiff was an avid golfer, who earned his living teaching and playing for money. This critically important fact, from the perspective of the Plaintiff as to his reason and objectives for contemplating elective surgery is not noted.

[33] For the Defendant this was a routine meeting. There is evidence of some sloppiness: mixing up hockey with golf and having a discrepancy in the measurements of extension.

[34] I accept the contents of the Defendant's consult notes, except for the errors, as the best evidence available of what happened that day, as far as they go.

[35] Where there is a conflict between the evidence of the Plaintiff and the oral evidence of the Defendant of what happened at the initial meeting not covered in the consult note, I accept the evidence of the Plaintiff.

[36] I reach the same conclusion about what was discussed between the Plaintiff and the Defendant in the follow-up meetings post-surgery. I accept the accuracy of the consult notes made by the Defendant in the post-operation meetings, as far as they go. I do not accept that they accurately describe all that took place or what was discussed. For the Plaintiff this was his life. For the Defendant this was one of many patients coming through his office. His recollection of what happened in the meetings after the surgery is very limited, apart from his notes.

[37] Where the Plaintiff has a specific recollection of what occurred in a follow-up meeting, and where the Defendant does not have a recollection, I accept the evidence of the Plaintiff.

Factual Chronology

[38] The Defendant is an orthopedic surgeon at Scarborough General Hospital, with a specialty in upper extremity surgery. He obtained his qualifications as a doctor in Libya and came to Canada on a scholarship to complete his residency in orthopedics at the University of Toronto. Afterwards he completed a sub-specialty fellowship training in upper extremity surgery and arthroplasty at St. Michael's Hospital before starting his surgical practice in 2008.

[39] At the time of the surgery, Mr. Solomon was 73 years old. Although not a licensed professional or instructor, Mr. Solomon earned a living giving lessons and playing golf betting for money. He was proud and happy in his golfing life, meeting interesting and important people along the way. Some time prior to the surgery, he also worked part-time as a cook.

[40] Mr. Solomon had problems in his left wrist for several years prior to meeting with the Defendant. By 2006, he sought treatment from his family physician.

[41] X-rays taken on September 15, 2006 confirmed the impression that Mr. Solomon had advanced osteoarthritis in the radial aspect of the left radiocarpal joint. The soft tissue ultrasound was normal.

[42] In 2007 Mr. Solomon was referred to Dr. Gilbert Yee, an orthopedic surgeon, for further treatment. Dr. Yee met with Mr. Solomon on one occasion on December 3, 2007. Dr. Yee's consult note confirms that the Defendant is a golfer, who had had left wrist pain for the past year and a half. The note confirms that "he has only had treatment with acupuncture". The note states that Mr. Solomon's pain occurred "at rest" and "at night" and was "aggravated by any activity, heavy lifting, or gripping objects and alleviated with rest".

[43] Dr. Yee prescribed physiotherapy and anti-inflammatories. He noted that if these treatments did not work, then "the only other recourse is surgical intervention, which I consider a wrist fusion, however I do not think he is at this point at this juncture. As such we will see how he does with conservative management".

[44] There is no notation from the family doctor, or any doctor of any treatments related to his wrist between 2007 and 2009, although the Plaintiff testified that he occasionally had cortisone shots which worked well.

[45] Mr. Solomon's pain continued. It interfered with his golf game and with his job as a cook.

[46] In 2009, Mr. Solomon decided to "get serious" about the problem. He and his son did some research on the internet about potential wrist surgery that may help him. The Plaintiff swore in his affidavit "I viewed an operation online that concerned a fusion operation that did not involve a metal plate". He went to his family physician and obtained a referral for a surgical consult.

[47] Dr. Morris, referred the Plaintiff to the Defendant. The referral note from Dr. Morris describes the reason for the referral as "advanced osteoarthritis" in the left wrist.

[48] The Plaintiff testified during his examination for discovery and again on cross-examination that by this time, in 2009, it appeared that the only remaining treatment option for him was surgery. He testified that the reason that he went to see the Defendant was because he wanted to explore having the surgery that he had seen on the internet so he could cock his wrist better to help his golf game.

Discussions on January 27, 2010

[49] The Plaintiff attended at the Defendant's clinic on January 27, 2010. Prior to the meeting the Defendant reviewed Mr. Solomon's, X-ray report, and the clinical note from Dr. Yee.

[50] The Defendant documented this assessment in a handwritten note and a dictated consultation note. These notes are the only contemporaneous written evidence of what transpired during the consent discussion.

[51] As confirmed in my findings of credibility, I accept the accuracy of the contemporaneous notes as the best evidence of some of the discussion that took place.

[52] The Defendant took a brief history as reflected in his handwritten note which states:

JAN 27 2010

→73 yrs old [male], RHD [right hand dominant]

Healthy Ø meds [does not take any medications] AU = Ø [no drug allergy]

Smok → 10 cig/day [smokes 10 cigarettes a day]

(L) [left] wrist pain – long time

Ø specific H/O trauma [no specific history of trauma]

non-sx Ø tx work [non-surgical treatment does not work]

getting worse

Xrays 2006

S-L lig rups [schapho-lunate ligament rupture]

*SLAC lesion [schapoid lunate advance collapse lesion] (L) [left] wrist

20° ext

5 flex

Tender [tenderness] + plan – wrist fusion

[53] The dictated note states:

[…] He has been complaining of left wrist pain for a long period of time. He had no specific history of trauma or injury to his left wrist. He was an active hockey player. He was seen in 2007 by Dr. Yee whom advised him for non-surgical treatment of anti-inflammatory drugs and physiotherapy. He had all of these, physiotherapy and chiropractor plus non-steroid anti-inflammatory drugs, which does not help him anymore. He is here in the office to have surgical option at this point.

[…] He has no obvious deformity in his left wrist except mild swelling. He has a lot of tenderness by palpation over the wrist joint. The neurovascular exam was normal. His grip of the finger was normal. His range of motion of the wrist was limited to approximately 15º of extension and 5º of flexion. He has full supination and pronation.

He brought with him the x-rays, which were taken in 2006, and it shows an evidence of an increased interval between his scaphoid and lunate bone, which indicates an injury to the scapholunate ligament. There was also evidence of an advanced arthritis between the scaphoid and the lateral facet of the distal radius. […]

[54] The notes of other discussion that took place are very brief. The discussion that took place was broader than what is contained in the notes.

[55] The Plaintiff has been consistent throughout in his evidence and is a straight shooter. The Plaintiff did not take notes or record the discussions.

[56] The Defendant has virtually no memory of the actual events and discussions that took place relevant to consent and relies almost entirely of his usual practice. I accept the evidence of the Plaintiff on specifics of what occurred as more credible and reliable than the evidence of the usual practice of the Defendant.

[57] The Plaintiff testified that he had brought the x-rays with him. The Defendant looked at the x-rays and pointed to two white dots in his wrist and said "That is your problem. We will clean the crap out of your wrist, put on a split cast, and see you in twelve days". He made the procedure sound routine. The Plaintiff stated in discovery that “Dr. Abughaduma made it sound like butter and toast this operation. It was nothing”. I accept this evidence, though I am not sure if the Defendant used the word “crap”.

[58] I accept the Plaintiff's evidence that he told the Defendant that he saw an internet fusion operation and that he wanted that operation. It would help his golf game as he could “cock his wrist better”. I accept the Plaintiff's evidence that he made it clear to the Defendant that he was interested in the surgery primarily to reduce pain to help his golf.

[59] The Defendant testified at trial that he diagnosed Mr. Solomon with advanced osteoarthritis. It is of note that this diagnosis does not appear in the contemporaneous written records. The written note does state that there was localized advanced arthritis: "evidence of an advanced arthritis between the scaphoid and the lateral facet of the distal radius".

[60] I accept the evidence of the Defendant in his note, which accurately summarizes the x-ray report. I do not accept his evidence that the Plaintiff had generalized advanced arthritis of the entire wrist. As will be seen, the scope of the arthritis is relevant to the surgical options available.

[61] The Defendant recommended total wrist fusion surgery. He referred to it as simply as a wrist fusion. The Consent Form calls it a wrist fusion, not a total wrist fusion.

[62] The Defendant testified that he recommended a total wrist fusion surgery because it is the "best" treatment for a patient, like Mr. Solomon, who suffers wrist pain from advanced osteoarthritis. Again, this diagnosis given at trial is not consistent with the contemporaneous note of the Defendant.

[63] The evidence is clear that only one surgical treatment option was discussed: a total wrist fusion, that the Defendant called a wrist fusion. The typed treatment note of the Defendant concerning the discussion that took place is as follows:

I had a long discussion with him regarding the treatment option, which at this point will be nothing except surgery. In terms of surgery, I offered him a wrist fusion.

[Emphasis added]

[64] There is not just one type of wrist fusion surgery. There is the four-corner wrist fusion, which does not involve the use of a metal plate, and there is the total wrist fusion: the surgery that was performed. There is also another surgical option, not a wrist fusion, called a proximal row carpectomy which Dr. Axelrod thought was a good and viable option for the Plaintiff.

[65] The Defendant testified at trial that he discussed with Mr. Solomon the option of proceeding with the wrist fusion or continuing with conservative non-surgical treatments. His note states “non-sx Ø tx work [non-surgical treatment does not work]”.

[66] The Plaintiff testified that the only option that was discussed at the meeting was the wrist fusion. There was no discussion of other alternatives, surgical or non-surgical. It appears that any discussion as to non-surgical options was cursory.

[67] I conclude that during the consultation on January 27, 2010, conservative treatment options and alternative surgical options other than a total wrist fusion were not discussed as options for treatment. The Defendant testified “I gave him my option”: a total wrist fusion.

[68] I accept the Plaintiff's evidence that he explained to the Defendant that he was a golfer and that being able to continue to play golf was crucial to him. To be able to play golf he would need to be able to cock his wrist to hold a golf club, as well as grip a club.

[69] The note of the Defendant confirms that the Plaintiff was an active hockey player, which is obviously an error. He suggested that the error may have been in the transcription. This seems most unlikely as a person typing a transcript would hardly confuse the words "hockey" and "golf".

[70] There did not appear to be any significant discussion between the Plaintiff and the Defendant about lifestyle and the Plaintiff's livelihood as a golf teacher and golf hustler relevant to the surgery. When asked in cross-examination that the option proposed by the Defendant meant the end of the Plaintiff’s golfing and teaching career the Defendant responded “How do I know sir, I don’t read minds”.

[71] The evidence is clear that the Defendant treated this consultation as very routine and did not spend time to explore the needs and objectives of the patient for this potential elective surgery.

[72] The Defendant also testified that his standard practice is to explain to any patient who might receive a wrist fusion that one of the downsides of the procedure is that it will remove any remaining range of motion in the wrist. The Plaintiff was clear in his evidence that this information was not conveyed. I accept the Plaintiff's evidence on this.

[73] The Defendant's evidence at trial, confirmed by Dr. von Schroeder, was that the complete loss of mobility as a downside of the surgery is not as significant in the case of Mr. Solomon because Mr. Solomon already had very limited range of motion (only 20 degrees of extension and 5 degrees of flexion in the handwritten note, (15 degrees of extension and 5 degrees of extension in the consult note).

[74] I find that the Plaintiff was not told that he would lose all mobility in his wrist as a result of this procedure and that a metal plate would be inserted in his wrist.

[75] The Plaintiff's evidence is that he told the Defendant that he wanted a specific wrist fusion surgery that he saw on the internet, which did not involve a metal plate. According to the Plaintiff, he not only told the Defendant that he wanted this wrist fusion surgery, he specifically told him that he did not want a metal plate in his wrist.

[76] The Defendant testified that he has no recollection of the Plaintiff asking for any specific procedure. The Defendant also testified that whenever a patient makes a specific request, he makes a point of writing it down in his note. He made no such notation in this case.

[77] I accept the Plaintiff's evidence that he discussed the surgery that he had seen on the internet. I accept that the fusion surgery that he saw did not have a metal plate. He may or may not have specifically told the Defendant that he wanted a wrist fusion without a metal plate.

[78] The Defendant's explanation to the Plaintiff of the proposed surgery was vague and non-specific: "the fusion of two bones with hardware". The Defendant did not tell the Plaintiff that the wrist fusion he was proposing involved the placement of a metal plate attached with screws.

[79] I accept that the Plaintiff thought he was getting the procedure that he saw on the internet: a different procedure, probably the four corner fusion which does not involve a metal plate with significantly less hardware, with a wrist that retains some movement post-surgery. It is possible that a metal plate was not specifically raised by the Plaintiff.

[80] Had the Defendant properly described the proposed surgery of a total fusion with the placement of a metal plate, along with the other surgical options, particularly the four-corner fusion with less hardware, this misunderstanding about the type of wrist fusion and the option of placing a significant metal plate ending all mobility would have been discussed between the patient and surgeon. The responsibility for the vague and uninformative disclosure about the nature of the surgery lies with the Defendant.

[81] I do not accept the Plaintiff's evidence that no risks were discussed with him. I accept the Defendant's consult note confirming that he canvassed general risks of surgery including:

The risk of surgery, which includes but not limited to, infection, bleeding, neurovascular injury, risk of nonunion or malunion, risk of hardware irritation and some risk related to anesthesia were discussed with him in detail. He is keen to go for surgery and the paperwork was signed today.

[82] It is not disputed that the Plaintiff was not told what the chances of success or failure were for the proposed elective surgery, nor was he told that he could be worse off after the elective surgery. He was not told of the rare but devastating risk of RSD.

Signing the Statement of Informed Consent

[83] Following the discussion in the office, Mr. Solomon signed a "Statement of Informed Consent" for a left wrist fusion.

[84] The Plaintiff's evidence, which I accept, is that the Defendant forgot to have the Plaintiff sign the consent form, and went back into his office to get the consent form as the Plaintiff was leaving. The Plaintiff signed the consent form while standing in the hallway.

[85] The Statement of Informed Consent refers to "wrist fusion" not a "total wrist fusion".

[86] The Statement of Informed Consent reads:

CONSENT STATEMENT:

I understand:

• The anticipated nature, benefits, risks and side effects of the above treatment/test/operation.

• The anticipated nature, benefits, risks and side effects of any alternative courses of action and likely consequences of not having the treatment/test/operation.

• That other qualified individuals may assist in the treatment/test/operation.

I have had the opportunity to ask questions, and any questions I have asked have been answered to my satisfaction. I consent to this treatment/test/operation.

[87] Although the consent form states that risks and side effects of any alternative course of action are in the form, I accept the Plaintiff's evidence that the only discussion with the Defendant was about a wrist fusion: the fusion of two bones using metal hardware.

[88] The Plaintiff on cross-examination acknowledged that he read the Statement of Informed Consent before he signed it.

[89] He testified that if at the time of signing the consent he had known that after the surgery he could not grip a golf club or cock his wrist, he would not have had the surgery. He was clear in his cross-examination that he was not aware that he had a metal plate in his wrist until after the surgery, and that "he did not want a metal plate in his wrist".

The Surgery and Afterwards

[90] The surgery took place on February 25, 2010.

[91] A 10 cm incision was made along the arm and an eight hole wrist fusion plate from Synthes was used at the wrist. The plate extends for four inches, according to Dr. von Schroeder approximately two inches above the wrist joint and one and a half inches below the joint. Post-operative x‑rays (capital x?) show that there had been an interval dorsal plate and screw fixation of the left wrist and that the alignment was satisfactory. The Defendant put on a half cast for two weeks.

[92] On March 9, 2010, the Defendant took off the first half cast and removed the staples. At that meeting, the Plaintiff found out for the first time that a metal plate had been inserted in his wrist. I accept his evidence.

[93] I accept the Plaintiff's evidence that he was surprised to learn that he had a metal plate in his wrist, and that was not the fusion surgery that he thought he was getting. His evidence was that he complained about the metal plate on that day.

[94] He was then placed in a second full cast below the elbow for six weeks. He did not have any therapy when he was in the cast.

[95] The Defendant removed the second cast on April 20, 2010.

[96] On April 20, 2010, the Plaintiff's wrist was incredibly swollen, as evidenced by the photograph filed as Exhibit 3. He could not move his fingers.

[97] The Plaintiff was very upset with the Defendant when the second cast was removed and he saw the condition of his arm and hand. He complained about the metal plate that had been put into his wrist. The following is part of the read ins from discovery filed by the defendant:

Q: And at that time you again did not complain that he put a metal plate in your wrist without your knowledge.

A: I complained; I yelled at him; I swore at him; I wanted to choke him. Okay?

Q: And you told him on that day?

A: Yes

Q: You didn't mention that in your affidavit.

A: No I didn't mention that in my affidavit.

[98] The Defendant noted "remarkable stiffness in his finger and his stump. He has swelling in his finger as well". The Defendant was "concerned about his finger stiffness". He sent the Plaintiff to physiotherapy. This appears to be the first clear evidence of the RSD.

[99] The Defendant did not remember that the Plaintiff was vocally angry and upset at the April 20, 2010 consultation, which seems difficult to believe.

[100] For the reasons given, I accept the evidence of the Plaintiff. When he was cross-examined about this meeting at trial, he added the detail that there was a little tray in front of him where food is served, when this incident and conversation took place when he was so upset he wanted to “go after” the doctor.

[101] I accept the evidence of the Plaintiff that he vocally, clearly, and aggressively complained about his condition and the metal plate on that day.

[102] The Defendant set a follow-up appointment for four to six weeks later with a referral to physiotherapy and medication in the interval.

[103] The result of the surgery was devastating.

[104] The defence makes much of the fact that the Plaintiff did not specifically complain in some of his meetings with the Defendant, that a metal plate had been inserted in his wrist other than the March 9, 2010 and April 20, 2010 meeting when his complaints were loud and clear. The Plaintiff was very busy attending intensive physiotherapy trying to get better.

[105] The next follow-up meeting with the Defendant was on May 18, 2010. The condition persisted and the Plaintiff was required to continue physiotherapy. He was prescribed Percocet medication for the pain three or four a day. The Plaintiff participated in intensive physiotherapy to try to overcome the unfortunate outcome for his fingers for the next three months.

[106] In July 2010 the Plaintiff went to the Canadian Open, and spoke to a golfer he knew, Luke Donald, who had had wrist fusion surgery that was successful. He asked him questions about his surgery to find out whether he had a metal plate in his wrist. The golfer confirmed that he did not.

[107] In his next meeting with the Defendant in August 17, 2010 the Plaintiff asked the Defendant about taking out the metal plate to reduce the stiffness in his fingers. The Defendant confirmed that he did not think "taking out the hardware will make a lot of difference to the stiffness". The Plaintiff was still taking Percocet, three to four tablets per day for pain. The Defendant encouraged him to continue with the medication and continue with aggressive stretching exercises.

Referral to Dr. Axelrod

[108] The Plaintiff sought a referral for a second opinion.

[109] By December 2010, he sought the assistance of the Defendant for a referral as his condition was not getting better, he was concerned about taking the prescribed Percocet medication. He also sought the assistance from the head of the hospital to get a referral.

[110] It was very difficult to get a timely referral and the wait times were very long. The Plaintiff had been able to obtain an appointment with Dr. von Schroeder but not until February 2012.

[111] He obtained a referral to see Dr. Terry Axelrod in July 2011, who is an experienced hand and upper extremity surgeon.

[112] Dr. Axelrod examined the Plaintiff on July 21, 2011. He wrote the consult note to the referring family doctor that day that precipitated his peripheral involvement in this case. The note states:

The patient was not provided with other operative intervention alternatives, such as proximal row carpectomy or a four-corner fusion.

He is unhappy with the results of this surgery. He does not feel that he had full disclosure of the procedure as well as potential complications. He also may be suing the doctor involved.

[Emphasis added]

[113] The consult note also states:

• Mr. Soloman's current complaints are pain in his fingers at the MP joint level and distal pain at the wrist where the plate is, and stiffness of the hand

• He cannot grip in that his fingers do not come down into his palm

• This interferes with his ability to earn a livelihood in his golf trade.

• The wrist is mildly tender over the plate. He has no flexion or extension, as to be expected.

• I have reviewed multiple xrays. The original x-rays, which were pre-op, indicate this man has a moderate degree of SLAC type arthritis of his wrist.

[114] Dr. Axelrod then outlines his proposed surgery. He stated in his consult note:

• I explained to Mr. Solomon that I am picking up the pieces from a previous operation and I will not be held responsible for this not working out favorably. I have told him that the possibility of this improving things was in the order of 50% to 60%. This will certainly not make his hand normal.

[115] In October 2011, Dr. Axelrod removed the plate, followed by a tenolyis of the extensor tendons, as well as doing a capsulotomy of the MP joints with appropriate releases to improve flexion on the MP joints.

[116] The post-operative consult note of a fellow of Dr. Axelrod confirms in December 2011 that the Plaintiff "comes with a large grip golf club today". He was not able to make a full grip but was progressing. He was still taking Percocet medication.

[117] The last involvement of Dr. Axelrod is the last progress note in January 2012 from a clinical fellow who confirmed that "things look much better". His hand mobility and grip had improved. He was able to pick up a coffee cup, "which is fantastic". His progress with respect to his hand and wrist was plateauing.

[118] The Plaintiff's grip and finger mobility improved as a result of the second surgery, but not to his level prior to the first surgery. His wrist is still fused and immobile.

[119] He cannot to this day play golf.

The Law

The Role of Expert Evidence in an Informed Consent

[120] Expert evidence is required in order for a plaintiff to succeed on a claim for medical negligence.[^2] However, expert evidence may be relevant, but is not necessary to questions of informed consent.

[121] In Videto et al v. Kennedy, the Court of Appeal for Ontario held that expert evidence is one factor to be considered on an informed consent claim, but is not determinative:

The question of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solely by the professional standards of the medical profession at the time. The professional standards are a factor to be considered.

The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient's decision whether or not to undergo the operation. If the patient asks specific questions about the operation, then the patient is entitled to be given reasonable answers to such questions. In addition to expert medial evidence, other evidence, including evidence from the patient or from members of the patient's family is to be considered.[^3]

[122] Similarly, in Brassard v. Germain, the Court of Appeal held that expert evidence is "very relevant" in deciding an informed consent claim, but is not determinative:

While expert's medical opinion is not determinative on the issue of informed consent, it is very relevant to the findings as to the risks involved and this can affect the trier of fact's decision on materiality of the risk.[^4]

[123] Expert evidence has been found to be necessary in the context of informed consent in some recent summary judgment motions.[^5] Fair to say there may be some issues involving an informed consent that may be too complex for a judge to understand without assistance from an expert. The ultimate question of whether there has been adequate disclosure in light of the governing legislation is to be determined by the trier of fact.

The Test for Informed Consent

[124] Section 11 of the Health Care Consent Act, 1996, S.O. 1996 c. 2, Sch. A, came into force on March 28, 1996. It is the legislative confirmation of a physician's duty to outline the risks and benefits of treatment, and the right of the patient to be informed of alternatives, to allow the patient to choose the best alternative for her. It states:

11 (1) The following are the elements required for consent to treatment:

1. The consent must relate to the treatment.

2. The consent must be informed.

3. The consent must be given voluntarily.

4. The consent must not be obtained through misrepresentation or fraud.

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and

(b) the person received responses to his or her requests for additional information about those matters.

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.

2. The expected benefits of the treatment.

3. The material risks of the treatment.

4. The material side effects of the treatment.

5. Alternative courses of action.

6. The likely consequences of not having the treatment.

(4) Consent to treatment may be express or implied.

[125] The College of Physicians and Surgeons of Ontario (The College) in turn mandates that the legislation be followed by providing policy statements to its members to outline the principles in obtaining a patient's consent to treatment. The following is a statement of the guiding principles in the CPSO Policy Statement in force in 2010:

1. The best interests of the patient are central to all physician-patient interactions.

2. Respect for the autonomy and personal dignity of the patient is central to the provision of ethically sound patient care. Through the translation of these ethical principles to law, the Supreme Court of Canada has confirmed the fundamental right of the individual to decide which medical interventions will be accepted and which will not.

3. In order to exercise their autonomy, patients must be capable of making informed decisions about their health care.

4. The goals of the Health Care Consent Act (HCCA) include promoting individual autonomy and decision-making capacity, and facilitation communication between health care practitioners and their patients.

5. Physicians have the obligation to secure consent and patients have the legal right to either consent to or refuse treatment.

[126] The element at issue in this proceeding is whether the consent was informed. The CPSO Policy Statement tracks the legislation and states:

Consent is not valid unless it is informed. A physician must provide a patient with information about the nature of the treatment, the expected benefits, its material risks and side effects, alternative courses of action and the likely consequences of not having the treatment. A physician should not assume that the patient has sufficient background or may not be interested in the information. Without full information, the patient does not have sufficient background to make informed health care decisions, and the consent may not be valid.

[127] In order to succeed on an informed consent claim, a plaintiff must prove that a physician failed to meet the requirements of informed consent mandated by the College, and that this failure caused damages.

[128] The second branch of this test, causation, involves both a subjective and objective component. First, the plaintiff must prove that he or she would not have consented to the surgery had he or she been properly informed (i.e., subjective causation). Second, the plaintiff must prove on a modified objective standard that a reasonable person in his or her shoes would not have consented to the surgery had she been properly informed.[^6]

Guiding Principles

[129] Where a physician has no present recollection of a consent discussion, courts will consider a physician's standard of practice as cogent evidence of that the physician acted the same way on the day in question.

[130] In evaluating the care provided by a physician, the court must focus on what the physician did or did not do at the time of treatment, not on the outcome of her actions. As the Supreme Court explained in St.-Jean v. Mercier:

What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than the means. Professionals have an obligation of means, not an obligation of result.[^7]

The Duty of Disclosure

[131] A physician has a duty to disclose the nature, gravity, and material risks of the treatment, and answer any questions posed by the patient about these risks. As the Supreme Court of Canada held in Hopp v. Lepp:

In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.[^8]

[132] A physician must inform a patient of alternative procedures that might be appropriate, as well as the benefits and risks of these alternatives.[^9] A physician need only disclose medically reasonable alternatives. As this Court held in Cameron (Litigation Guardian of) v. Louden:

One further aspect of the physician's duty of disclosure is to advise the patient of "any available alternatives to the treatment being proposed, as well as the material risks associated with those alternatives"; however this extends only to alternatives which the physician believes "offer some advantage and are reasonably likely to achieve a beneficial result."[^10]

[133] A material risk is one that a reasonable person in the patient's position would want to know before deciding whether to proceed with the proposed treatment.[^11] A risk that is a "mere possibility" need not be disclosed unless it may result in serious consequences.[^12]

Disclosure and Elective Surgery

[134] This case involves elective surgery.

[135] Dr. von Schroeder stated that the discussion with the patient as to an informed consent is a process. I agree with this characterization.

[136] For elective surgery, all material risks must be disclosed. The legal standard of disclosure does not vary, but the scope of the disclosure does. "In other words, in deciding whether a risk is "material" the elective nature of the procedure is a relevant (and significant) factor. A risk is much more likely to be characterized as material (that is something that a reasonable patient would want to know about) if the procedure is elective."[^13]

[137] The cases confirms that for elective surgery the scope of disclosure of both material risks as well as the obligation to explore options available is enhanced. It has been held that when surgery is elective, even minimal risks must be disclosed since operation is unnecessary for her medical welfare”.[^14] However, other courts have declined to find that there is a higher standard of disclosure in cases of elective surgery.[^15] It appears that the scope of the disclosure necessary to evaluate the trade-offs inherent in elective surgery is enhanced from the disclosure required in respect of surgery that is medically necessary.[^16]

[138] This need for comprehensive disclosure of benefits and risks in elective surgery makes perfect sense. Elective surgery is to improve quality of life, not to save life. Care must be taken when the consent discussions take place to ensure that the patient is fully informed of risks, benefits and options, to be able to assess whether he or she wishes to proceed with surgery or not.

Conclusions on the Adequacy of Disclosure in the Discussions between the Plaintiff and Defendant

[139] There are, in my view, six problems with the disclosure provided by the Defendant, taking into account the governing legislation and the policy directives of the College. Five of these problems are clear on the evidence without the need to review the expert evidence. The sixth problem is informed by a review of the expert evidence.

[140] I reiterate the College requirements: A physician must provide a patient with information about the nature of the treatment, the expected benefits, its material risks and side effects, alternative courses of action and the likely consequences of not having the treatment. A physician should not assume that the patient has sufficient background or may not be interested in the information. Without full information, the patient does not have sufficient background to make informed health care decisions, and the consent may not be valid.

1. Failure to Know Needs, Lifestyle of Patient

“The best interests of the patient are central to all physician-patient interactions”

[141] The first principle in the College Policy Statement in force in 2010 is that “the best interests of the patient are central to all physician-patient interactions.”

[142] For elective surgery in particular, the surgeon needs to know the patient to provide advice about a patient’s best interest. The surgeon should have an understanding of the patient’s work needs and his lifestyle, and consider the impact of any proposed surgery on the patient's life. Knowing the patient's lifestyle and needs allows the surgeon to provide appropriate advice as to options available for treatment.

[143] Clearly the Plaintiff had an issue with pain. It is also clear that the Defendant did not adequately explore with the Plaintiff his needs, expectations, in his lifestyle and his work. Primarily the Plaintiff wanted the surgery to help him cock his wrist with reduced pain to enable him to continue to teach and play competitive golf. A total wrist fusion eliminating all wrist movement does not meet this patient goal.

2. Inadequate Description of the Surgery:

“A physician must provide a patient with information about the nature of the treatment”

[144] There was not an adequate description by the Defendant of the specifics and the magnitude of the proposed surgery.

[145] The Defendant had no recollection of the discussion with the Plaintiff as to the nature of the proposed surgery, and it is not included in his consult note. The Defendant testified that his usual practice was to explain a total wrist fusion in plain language so that his patients understand it. For example, he would say the words "wrist fusion" rather than the technical term "wrist arthrodesis". He would say that he explains that it involves fusing two bones of the wrist together with the use of metal hardware.

[146] The Defendant did not explain to the Plaintiff that for the total wrist fusion he was proposing involves inserting a metal plate along the wrist joint, approximately 4 inches in depth: 2 inches extending towards the fingers, and 1 ½ inch(es) extending below the wrist continuing the width of the wrist. The metal plate is attached with several metal screws, in the Plaintiff's case eight screws. Further, following the surgery, the Plaintiff would be in a half cast for two weeks and a full cast for six weeks. These specifics were not explained.

[147] Dr. von Schroeder confirmed that the surgeon should describe the surgical procedure to the patient for this elective surgery, explaining that a metal plate will be inserted. The specific type of metal plate need not be discussed. In my view (insert comma) the surgeon should also explain that there will be a two phase casting of the wrist for a total period of two months.

[148] I conclude that the description given by the Defendant is vague and not adequate disclosure as to the nature of this significant elective surgery. Further, I accept the evidence of the Plaintiff that the Defendant made the proposed surgery appear routine.

3. Failure to Explore the Surgical Option Suggested by the Plaintiff

“A physician should not assume that the patient has sufficient background or may not be interested in the information. Without full information, the patient does not have sufficient background to make informed health care decisions, and the consent may not be valid.”

[149] The Plaintiff had in mind a specific surgery that he discussed with the Defendant. I accept that the Plaintiff had done research on the internet about a wrist fusion procedure that did not involve the use of a metal plate. I accept that the Plaintiff discussed with the Defendant the surgery that he had researched and that he wanted.

[150] The Plaintiff was clear that the surgery he saw on the internet that precipitated his visit to the family doctor seeking a referral to a surgeon did not involve a metal plate. Probably the surgery that the Plaintiff saw on the internet was a four corner fusion.

[151] The Defendant did not adequately explore this surgery with the Plaintiff.

[152] The Plaintiff testified that he was not aware that a metal plate had been inserted in his wrist until March 9, 2010 post surgery. I accept his evidence.

[153] The Defendant had an obligation to explore with the Plaintiff what surgery he wished to have. Had the Defendant more fully described the proposed surgery of a total wrist fusion, which as noted above, I find he failed to do, the Plaintiff would have been aware that this was not the surgical intervention that he had seen on the internet and was seeking.

4. Failure to Clearly Warn that the Fusion Surgery would Eliminate All Movement

“The physician must explain the side effects of the surgery.”

[154] The Defendant did not confirm with the Plaintiff that a total wrist fusion meant that the limited range of motion that the Plaintiff had in his wrist would be totally eliminated. This consequence of the proposed surgery is very relevant to the Plaintiff, as to play competitive golf and to teach by example he must be capable of cocking his left wrist. Some movement is essential. Prior to the surgery, he was able to cock his wrist and to teach, although with pain. The small range of motion remaining in the Plaintiff's wrist was precious and needed for his livelihood.

[155] The Defendant's note indicates he is a hockey player. He did not explore that for the Plaintiff, golf was not just a hobby, and maintaining some limited wrist movement was crucial.

5. Failure to Describe Material Risks

“A physician must provide a patient with information about its material risks”

[156] I do not accept the Plaintiff's evidence that no risks were discussed with him, and accept the Defendant’s note outlining general risks of surgery.

[157] I accept the Defendant's consult note confirming that he canvassed general risks of surgery including:

The risk of surgery, which includes but not limited to, infection, bleeding, neurovascular injury, risk of nonunion or malunion, risk of hardware irritation and some risk related to anaesthisia were discussed with him in detail. He is keen to go for surgery and the paperwork was signed today.

[158] This is adequate advice about general risks of surgery.

[159] It is not disputed that there were no discussion(s) between the Plaintiff and the Defendant of the chances of success of this surgery. There was no discussion of the risk of RSD.

[160] There is conflicting caselaw on the obligation to warn of RSD.[^17]

[161] The British Colombia Court of Appeal has held that the risk of reflex sympathetic dystrophy (RSD) of between 1% to 2% following wrist surgery ought to have been disclosed because it is material, special or unusual.[^18] The decision in Doiron v. Haché confirmed that it is a question of fact whether there is an obligation to warm of possible RSD.[^19] The Court concluded, confirmed by the New Brunswick Court of Appeal, that in the facts of that case it was not necessary to warn about RSD as there was no proof that the RSD was a consequence of the surgery that took place. In Doiron v. Haché the Plaintiff had broken both of her wrists after a fall and suffered RSD. Hers was not a situation of elective surgery.

[162] It has been held that when surgery is elective, “even minimal risks must be disclosed since ‘the frequency of the risk becomes much less material when the operation is unnecessary for his medical welfare.”[^20]

[163] The Plaintiff, who was self-represented until one day before the trial did not raise the issues of the non-disclosure of the RSD. I raised the issue of disclosure of RSD during the Defence argument. Dr. Axelrod was not cross-examined on the obligation to disclose RSD. I do not accept the evidence of Dr. von Schroeder that there is no obligation to advise of the risk of RSD as it is rare condition, in the context of this elective surgery.

[164] A surgeon has an obligation to disclose material risks. The scope of what is a material risk is a question of fact. What would a reasonable person in the patient’s shoes would have wanted to know? I conclude that a reasonable patient would have wanted to know that a possible, though rare consequence of the elective surgery of a total wrist fusion would be to have fingers that were like a non-functional claw with significant and increased pain.

[165] In my view in the context of this elective surgery, a surgeon should advise of the patient of the rare but devastating consequences of RSD. I adopt the position of the British Colombia Court of Appeal in Bryan v. Hicks on this issue.

[166] I am also of the view that it is appropriate to give the patient information about the likely chances of success of elective surgery.

[167] In this very brief trial these two issues were not explored except tangentially. I note that these concerns are not necessary to my decision, as there were many other problems with the scope of the disclosure that were clearly raised and argued.

Failure to Describe other Surgical Options

“A physician must provide a patient with information about …. alternative courses of action”.

[168] Finally, the Defendant did not explore other surgical options short of a full fusion, that would have allowed some mobility, but with less reduction of the pain. No other surgical options were canvassed.

[169] This issue is informed by the expert evidence. Prior to discussing the question of the surgical options, I will outline my conclusions on the credibility and reliability of the experts. I will then review the evidence on the scope of the Plaintiff's pre-surgical arthritis, which is relevant to the surgical options available, followed by my conclusions on the inadequacy of disclosure of other available surgical options.

Credibility and Reliability of Doctors Axelrod and von Schroeder

[170] The Plaintiff sought a second opinion and a referral to a specialist in hand surgery. He relies on the treatment note and cross-examination of Dr. Axelrod, his second treating surgeon. In 2011(insert comma) Dr. Axelrod removed the metal plate inserted by the Defendant and did surgery on the Plaintiff's fingers.

[171] Dr. Axelrod is (a) highly qualified Upper Extremity Hand orthopedic surgeon. He did a clinical hand surgery specialty fellowship in Bern Switzerland in 1989 and was a visiting fellow at the University of Basel in 1990. He taught Dr. von Schroeder some years ago. He was the Division Chief of the Orthopedics Department at Sunnybrook Hospital for several years. He has extensive teaching experience and many publications.

[172] Dr. Axelrod prepared a consult note to the referring physician. Dr. Axelrod confirmed in his consultation note dated July 21, 2011:

Mr. Solomon … is right handed. I asked him what he does for a living and he indicates that he hustles golf. ….

The patient was not provided with other operative intervention alternatives, such as proximal row carpcetomy or a four-corner fusion.

He is unhappy with the results of this surgery. He does not feel that he had full disclosure of the procedure, as well as potential complications. He also may be suing the doctor involved.

[173] Dr. Axelrod was subpoenaed to be cross-examined by the defence as a result of this referral note after Myers, J. determined that there was a live issue as to informed consent.

[174] Dr. Axelrod is clear and unequivocal that there were other surgical options besides a total wrist fusion that should have been explored with the Plaintiff, and that were appropriate, less drastic options for him. These include a proximal row carpectomy or a four-corner fusion. He was of the clear view that the pros and cons of the surgical alternatives, and non-surgical options should have been reviewed with the Plaintiff, leaving the decision of whether to proceed with surgery, and which surgery to be determined by the patient.

[175] Although he did not appear in court, on consent, the transcript of his cross-examination was filed as an exhibit in this trial.

[176] Dr. von Schroeder was retained by the defence as their expert witness pursuant to Rule 53.03 opining on the question of negligence, and also on informed consent. Dr. von Schroeder prepared two brief reports. They were provided to me as "an aide memoire". Defence counsel declined to file them as part of Dr. von Schroeder’s evidence in chief.

[177] Dr. von Schroeder is a recognized highly qualified expert in hand surgery. He too did a fellowship in hand surgery, not in Switzerland, but the United States. He has a further level of American certification compared to Dr. Axelrod following his fellowship in 1997 in Louisville, Kentucky.

[178] The Defendant has a fellowship in upper extremity surgery, but he does not have the comparable fellowship qualifications in hand surgery compared to the two experts.

[179] Both Dr. Axelrod and Dr. von Schroeder are respected, experienced experts in wrist surgery. Both are well qualified to comment on the appropriate disclosure of alternative surgical options to a total wrist fusion for an upper extremity orthopedic surgeon in 2010 for an informed consent. They each have respect for each other as colleagues and are clearly eminent surgeons.

[180] I find the evidence of Dr. Axelrod in his cross-examination to be neutral, fair, credible and reliable. The following is an excerpt from his transcript confirming first, that the Plaintiff's arthritis was moderate:

I said in my note that it was moderate, [the arthritis] which means it's in between.

So I actually - - and remember, I'm not being retained by anybody here. I'm trying to stay as neutral as possible. I like Dr. Abughaduma. He's a nice guy. Read, he's a nice guy. I know him from meetings and things like that. So I'm not trying to nail anybody to the wall. But there are various options to manage this problem, and a wrist fusion is one of three. There are three options for managing that problem.

[181] Both experts are eminent surgeons. However, I have difficulty accepting some of the evidence of Dr. von Schroeder, compared to the evidence of Dr. Axelrod in relation to the issue of an informed consent for four reasons.

[182] First, Dr. von Schroeder opined that the Defendant met the standard of “an average orthopedic surgeon in 2010.” The Plaintiff was referred to the Defendant for surgery as he had completed a fellowship in Upper Extremity surgery. He was not a general orthopedic surgeon.

[183] Second, although I find the careful wording in Dr. von Schroeder’s report read into evidence at first blush fair, he made factual assumptions in his report that carried through to his viva voce evidence that were erroneous. He understood that the Defendant in fact had discussed other surgical options with the Plaintiff that were considered by the Plaintiff and rejected. He states:

Dr. Abughaduma also stated that he discussed other alternatives, but he did not specifically mention what the alternatives were in his dictation. Dr. Axelrod mentioned two of several surgical alternatives (proximal row carpectomy and four corner fusion). These also all have relative risks and benefits. Given the "advanced arthritis" and limited motion, these would not necessarily have been ideal choices for the patient.

[Emphasis added]

[184] The evidence is clear that the Defendant did not discuss any other surgical options except a total wrist fusion. Therefore, the conclusion of Dr. von Schroeder that the Defendant met the standard of an average orthopedic surgeon in 2010 on the question of informed consent addresses not only the wrong standard, but also is based on incorrect facts. Therefore, I find his opinion is seriously undermined.

[185] Third, he did not review the x-rays or see the patient. He made statements assuming that the diagnosis of advanced arthritis of the entire wrist relying upon the interpretation of others. Dr. Axelrod, a treating surgeon, actually examined all of the x-rays in question, and examined the patient. He disagreed. He found that the Plaintiff’s arthritis was localized and moderate.

[186] Finally, Dr. von Schroeder's evidence at the trial went beyond the careful but fair wording in his report.

[187] In his oral evidence he slipped into becoming an advocate for the Defendant, rather than a neutral witness. He was begrudging in admitting the obvious in cross-examination. He testified that it would be “useful” to know that the Plaintiff was an avid golfer making his livelihood from golf.

[188] With respect, for elective surgery, it is more than useful to know the patient’s activities and livelihood. The surgeon needs to be informed about the background and needs of a particular patient. This is essential information in the process of an informed consent discussion to enable a surgeon to make recommendations to a patient in his or her best interest amongst available options, taking into account the background, needs and work of the patient.

[189] When Dr. von Schroeder was made aware that his factual assumption that other options were discussed was incorrect, he suggested that it was not necessary to discuss the other surgical options with the patient for an average orthopedic surgeon, as the total wrist fusion was the best option for total elimination of pain. Again, I reiterate that the Plaintiff was referred to the Defendant as he had a specialty in upper extremity surgery. A surgeon has the obligation to discuss viable options.

[190] I accept the evidence of Dr. Axelrod of the importance of reviewing the risks and benefits of other viable surgical options. Dr. von Schroeder stated that he did not have a quarrel with Dr. Axelrod’s initial consult report to the family doctor in July 2011. Further, after reading the transcript of Dr. Axelrod’s cross-examination he stated that “the bottom line, I do not think we differ”.

[191] As I will outline, I do not accept Dr. von Schroeder’s evidence on both the subjective and the objective test.

[192] For these reasons, if there is a conflict between the evidence of the two doctors I prefer the evidence of Dr. Axelrod as informed with personal knowledge of the Plaintiff.

Issue Re: Filing of Expert Reports v. “Aide Memoire”

[193] Dr. von Schroeder prepared two reports that were provided to me as an “aide memoire” but were not filed in accordance with the Defence request as part of the defence evidence.

[194] As an aside, in my view, the issue of filing reports as part of an expert's evidence in chief needs to be addressed by the Civil Rules Committee. Having the reports for a judge as an “aide memoire” appears an outdated, awkward and overly technical practice. What possible prejudice could there be for a party to file their expert report as part of the expert’s evidence in chief?

[195] In this age post Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, of proportionality and recognition of the need to streamline the court process, I respectfully suggest that a judge’s access to the expert report as an "aide memoire" with reliance only on the oral testimony for the trier of fact appears to be out of step with the thrust of simplifying and making accessible civil litigation.

[196] In a jury trial, members of the jury do not have the benefit of the "aide memoire". Trials may be lengthy and complex with several experts. Surely the members of the jury should be able to have at hand the expert reports as part of the expert’s evidence to refresh their memory, as well as their recollection and notes of the viva voce evidence.

[197] These observations as to procedure have no impact on my decision. I simply note that the practice of “aide memoire” may be out of step and needs to be addressed by the Civil Rules Committee.

The Plaintiff's Pre-Surgery Arthritis

[198] Dr. Axelrod reviewed all of the x-rays, and he performed the second surgery in October 2011. Dr. Axelrod's evidence was that in 2010 Mr. Solomon had early SLAC type of arthritis to moderate osteoarthritis rather than advanced arthritis suggested by the Defendant and Dr. von Schroeder.

[199] The x-ray report in 2006 confirms severe degenerative narrowing of the left radiocarpal joint particularly adjacent to the articulation formed by the scaphoid and radius. The impression was "advanced osteoarthritis is present along the radial aspect of the left radiocarpal joint. There are no other findings".

[200] The ultrasound performed was normal.

[201] The Defendant had an X-ray done on February 12, 2010 just prior to the surgery. That report states:

There is a marked widening of the scapholunate interval measuring up to 6 mm in keeping with ligament tear and previous trauma. There is a marked degeneration and narrowing of the radioscaphoid articulation. No other abnormalities are identified.

[202] In giving his evidence, Dr. von Schroeder assumes that the arthritis was “very advanced”, “involving essentially all aspects of the wrist”. The Defendant also testified that the Plaintiff's arthritis was severe, yet his consult note simply reiterates the impression in the x-ray report.

[203] Dr. von Schroeder did not review the x-rays, or meet with the patient.

[204] Dr. Axelrod concluded after his review of the x-rays, that the Plaintiff’s arthritis was moderate, and that other surgical options were available and appropriate for the Plaintiff. His evidence on the scope of the arthritis was:

I said in my note that it was moderate, which means it’s in between……

That’s what I tried to say in my note, and I said that very clearly to Mr. Solomon in my opinion. His arthritis was not so, so bad that you could not manage it with either a fusion, which was chosen - - and it’s not wrong to do a fusion. That’s perfectly acceptable, in my opinion, to do a total wrist fusion with a plate. But you can also do a four-corner fusion, or you could do a proximal row carpectomy. The end results of each of them would be perfectly acceptable for the presenting problem that Mr. Solomon had, and that’s all I’m trying to say here.

So I think that it’s perfectly acceptable to have done that. Now, for Dr. von Schroeder to go out on a limb and say that that was not necessarily the best operation, if you read it, that’s a double negative. That means that it would have been okay to do it. Right? Turning the table here a little bit; right?

Q. So it was fair for him to infer from this that Mr. Solomon had advanced osteoarthritis?

A. This is why we train for eight years to become an orthopaedic wrist specialist. There are subtleties to it.

If you read the report - - and, first of all, we don’t rely on reports as surgeons. We actually look at the images ourselves to make our own diagnosis and our own plans for treatment.

And, secondly, the description is that the osteoarthritis is between the scaphoid and the radius. That’s the portion of the wrist which is always involved with a slack wrist arthritis. It’s not what we call pancarpal arthritis, which is arthritis involving the entire wrist joint. The arthritis involves a very specific part of the wrist joint.

So with those alternate procedures that we’ve talked about, you deal with that arthritis involving the radial scaphoid joint. Because you take out the scaphoid bone in both of those procedures. And that’s why those procedures are described. It’s to deal with this very issue here.

So, yes the radiologist describes severe arthritis in one section of the wrist, and that’s perfectly acceptable and I would agree with that. But when you actually look at the overall picture, it’s more, as I say, it doesn’t preclude the surgery - - alternate surgeries being options.

A. Is an appropriate procedure? Yes, it’s an appropriate procedure, but it’s not the only procedure.

Q. Dr. von Schroeder says that, given Mr. Solomon’s presentation to Dr. Abughaduma, advanced osteoarthritis, very limited range of motion, and his chief complaint being wrist pain - -

A. Mm-hmm.

A. - - a proximal row carpectomy was not necessarily an ideal surgery for Mr. Solomon do you agree with that statement?

A. No.

Q. Can you elaborate?

A. I think - - look, I looked at Mr. Solomon’s - - I haven’t seen them in five years, but I remember Mr. Solomon brought along his images and I got to look at those x-rays. And I have to tell you frankly I don’t agree with this being advanced osteoarthritis of his wrist. I said in my note that it was more moderate, which means it’s in between.

[205] Dr. von Schroeder in cross-examination conceded after reading the transcript of Dr. Axelrod that the assumption of severe arthritis may be in the "grey area", as the localized arthritis may be between moderate and severe. He also testified after reading the cross-examination of Dr. Axelrod that “the bottom line, I do not think we differ”.

[206] I accept the evidence of Dr. Axelrod as to the scope of the Plaintiff's pre-surgical arthritis as moderate. He viewed the X-rays, and formed a clinical opinion. He was a treating surgeon.

Other Surgical Options were not discussed

[207] Dr. Axelrod confirmed in light of the location of the Plaintiff's arthritis, there were two additional surgeries: a proximal row carpectomy and a four-corner fusion, that were good viable alternatives for Mr. Solomon when he presented to the Defendant in 2010. Proximal row carpectomy involves removal of three of the eight small bones in the wrist which can reduce pain and maintain some range of motion. A four corner fusion involves fusing four of the small bones in the wrist. The risk of non-union according to Dr. Axelrod is 20%. It maintains some range of motion, and would reduce, not eliminate pain.

[208] Dr. von Schroeder confirmed that “we normally talk about alternatives”. “Where there are options it is worth mentioning the alternatives”. He testified that he had assumed that the Defendant had discussed other surgical options with the Plaintiff, as he inferred from the work "option" that it implied plural with choices presented to the patient. This factual assumption is not correct. The only option discussed with the Plaintiff was a total wrist fusion.

[209] As I outlined in my findings of credibility, Dr. von Schroeder incorrectly assumed that the other surgical options were discussed with the Plaintiff:

Dr. Abughaduma also stated that he discussed other alternatives, but he did not specifically mention what the alternatives were in his dictation. Dr. Axelrod mentioned two of several surgical alternatives (proximal row carpectomy and four corner fusion). These also all have relative risks and benefits. Given the "advanced arthritis" and limited motion, these would not necessarily have been ideal choices for the patient. A proximal row carpectomy can for example lead to further arthritis and symptoms (between capitate and radius) as well as instability of the wrist. A four corner fusion has a relatively high non-union rate and pain with extension. Both operations are known to reduce, but not eliminate pain. Pain was Mr. Solomon's chief complaint. If these alternative operations would have been unsuccessful for pain control or complications, then a total wrist fusion would be the next step. As such, many surgeons view a total fusion as the 'go-to' operation and favour it is as an initial procedure.

[210] Dr. von Schroeder assumed, incorrectly, that the Defendant had discussed with the patient the other available surgical options, and that the Plaintiff had made an informed decision to choose a total wrist fusion: the most extreme of the three surgical interventions, as the initial procedure, after consideration of the other options.

[211] In the rule 39 examination of Dr. Axelrod requested by the Defence, the Plaintiff was self-represented. In this unique situation, it is the Plaintiff, the patient, asking his second treating surgeon the essential question. Should he have had a total wrist fusion?

Q. Yes. And I got to a point where I had to get it handled because I was going into the twilight years. Now, if you were in my position, Doctor, my age, you were an athlete, a golfer, would you have got a total arthrodesis?

[212] In response to the direct question from Mr. Solomon on this issue, Dr. Axelrod gave the following cogent evidence about choices available and the need to explore the pros and cons of the available options:

A. That's a very tough question to answer. What I have to - the only answer I could give you would be I'd want to know the various options that were available. You've already tried all the non-operative treatments. And I would have, I would have been expecting various options to be discussed with me: we can do nothing; we can give you a brace, but we're not going to do that because it doesn't work. You've tried that. We can try this operation or this operation and this operation, and these are the pros and cons of all three of those.

If you want perfect pain relief, the best thing I can offer you is a wrist fusion, a total fusion. And remember, Albert, that every wrist fusion requires a plate. That's a given.

There are - - I mean, there is the four-corner fusion and then there's the proximal row carpectomy. Those are all options that are available to you. And you would have to - - you know, we don't - - doctors don't dictate the patients anymore what you should have done.

That went out with the horse-and-buggy age. We - - it's a combined decision that we make with our patients. And then you can ask me questions back, and then we can have a discussion and hopefully arrive at something that everybody would agree to.

Q. Right.

A. So that's what I would expect. So you asked me a question if I was in your situation, what would I have expected or wanted. If I wanted full pain relief and I didn't care about losing that little bit of movement you have left, I would have gone for the fusion. But if I was willing to say: Well, I know it might still hurt a little bit but I still need to keep the movement, then I would have gone for one of those other procedures.

…….A. Just say a couple of things to you. A wrist fusion like he did was not a wrong choice. The issue in my opinion really is just you being given the choice of different alternatives.

And secondly, maybe you heard from somebody that this operation could have been done without hardware, without a plate. That's not the way we do the operation.

So if you came to me and said to me, "I want a total wrist fusion," I would have done the same operation that Dr. Abughaduma did. I would have used the same plate in the same position as he did.

So I don't want you to think that using a steel plate was the bad thing to do. If you're going to do that operation, that's the way we do it.

Q. Yeah. I understand that.

A. It's just to me the issue of whether or not you were given other choices that you might want to - - might have preferred to have done.

[213] Earlier in the transcript, Dr. Axelrod confirmed that the other two surgical options were viable for the Plaintiff. He was cross-examined by defence counsel on these two options:

Q. Is it fair to say that a four-corner fusion would not be as effective at reducing the pain in a patient's wrist, a patient like Mr. Solomon, as a total wrist fusion?

A. The answer to that question would be it's all - - it always depends. So what we would normally say to a patient who came to see me with arthritis of their wrist, we would say: if we did a four-corner fusion, we could expect a fairly good chance of significant pain reduction; but if you want to get absolute pain relief, a fusion is what we call the gold standard. So the total fusion has the best chance of giving you complete pain relief.

And then I would say to the patient it's a bit of a tradeoff, that you could sacrifice all of your movement for complete pain relief, or you could put up with some pain but still preserve some movement of the wrist. And that's how I would tell it to them and then let the patient decide what they prefer.

And there's no doubt that a total wrist fusion still is the best way of a hundred percent eliminating pain. If you can even do something that's a hundred percent, that's the best way of eliminating pain. But the four-corner fusion is pretty good, too, just not quite as good.

Q. A proximal row carpectomy would also not be as effective at reducing pain?

A. Same scenario is how I would describe it. It's not quite as effective at reducing pain but it does help substantially. It's - - both of them are well-tested good operations.

[Emphasis added]

[214] Dr. Axelrod's descriptions of the two other options confirms that the four corner fusion involved significantly less hardware. The proximal row carpectomy involves removing bone without hardware. He confirmed that given the location of the Plaintiff's arthritis, these options were “well tested good operations”.

Impact of Loss of Range of Motion

[215] Both the Defendant and Dr. von Schroeder testified that given the Plaintiff's limited range of movement, going to a total wrist fusion with no movement was not a great loss.

[216] I accept the evidence of Dr. Axelrod on this issue. Generalizations should not be made about the effect upon a patient of the loss of movement, even a small range of movement. The patient needs to be informed of the facts, and then make an informed decision. Dr. Axelrod states:

A. That is very limited range of movement.

Q. In that circumstance, when there's already very limited range of motion, a total wrist fusion is not going to significantly reduce the range of motion that's already there; is that correct?

A. I will eliminate whatever's left. I'm not sure I would agree with you. People accommodate to what they have. And if you only have a little bit of movement, losing that little bit of movement can be the straw that broke the camel's back.

Q. Right.

A. And it can make a difference for people. And so I wouldn't agree with you. I wouldn't say that its' not significant because it's already stiff. You can certainly make that argument, but I think you have to keep it in context of the problem. And if somebody has a painful wrist which still has some movement in it, it's not fair to say that, well, it's only got 20 degrees of movement like this, and we're going to get rid of that, and you won't even notice it. That's not fair. Because most people will notice even losing that little bit that they have left.

[217] I accept the evidence of Dr. Axelrod that other surgical options were available to the Plaintiff and should have been discussed. A total wrist fusion offered the best chance to totally eliminate pain, but it also eliminated all wrist movement, which impaired the ability to cock the wrist: essential for the Plaintiff's golfing livelihood. The two other surgical options available would reduce, not eliminate pain but were good options that would maintain some of the Plaintiff's wrist mobility.

[218] Non-surgical options were not discussed. I do not specifically fault the Defendant for this, as it appears that the conservative treatment options had been tried, and that the Plaintiff was familiar with and the (?) conservative treatments. The decision for the Plaintiff was to proceed with elective surgery, which surgery to choose, or to live with the pain continuing with conservative treatment options, including temporary relief with cortisone.

[219] I find that the Defendant did not discuss the other less drastic surgical options with the Plaintiff, in breach of his obligations. The Plaintiff had the right to choose amongst available surgical options. The Defendant unilaterally made the choice for the patient. He testified: “I gave him my option.”

[220] For all of these reasons I conclude that the Plaintiff's consent to a total wrist fusion was not an informed consent.

Respectful Suggestion

[221] The College provides policy statements that members are required to follow. They are updated periodically. Counsel provided the policy statement that was in effect and the time of this surgery, and also the current, expanded policy statement. The policy statement in place in 2010 has been updated and is now more comprehensive and complex, reflecting I suppose developments in the law on an informed consent. I wonder whether, and how often these policy statements are read.

[222] To assist busy surgeons who see many patients, I respectfully suggest that it would be helpful for the College to not only provide policy statements reflecting the legislation and the caselaw, but also to provide a comprehensive check list of areas to discuss with patients to ensure busy surgeons cover all the issues in the process of an informed consent. A copy of the completed form, along with the signed consent form could then be given to the patient to review. The patient may be under considerable stress during the meeting with the surgeon. Having the completed form would ensure that he or she has understood the process of an informed consent.

[223] The pro forma Consent to surgery that was filled out by the Plaintiff in this case is not adequate to ensure an informed consent. In this case, the surgeon forgot to have the Consent filled out during the meeting and the Plaintiff filled in the form in the hallway after the meeting.

[224] It is devastating when there are problems with a surgery for a patient. It is also, I am sure very difficult for surgeons such as the Defendant to face lawsuits challenging their advice given. From the perspective of a lone trial judge, it would appear that having a more structured process with checklists provided by the College to ensure an informed consent is in the interests of both patient and surgeon.

Causation

[225] To determine whether a physician's failure to disclose caused damage, the Court must ask not only what the plaintiff would have done if the material risks had been disclosed, but also whether a reasonable person in the plaintiff's position would have consented to the treatment if disclosure had properly been made.[^21]

[226] The Court of Appeal for Ontario in 2014 held in Bollman v. Soenen:

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 [he] is entitled to damages for the lack of informed consent.[^22]

[227] Benotto J.A. in Bollman, citing the Supreme Court's decision in Reibl v. Hughes, confirmed the reason for the objective test is to avoid the problem of hindsight bias: the tendency for patients unhappy with a surgical outcome to claim that they would not have consented to the surgery had they been advised differently:

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.

[228] The Supreme Court repeated its concern about hindsight bias in Arndt v. Smith:

A purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness that cannot be accepted.[^23]

[229] The modified objective test is also required to prevent a patient from relying on an idiosyncratic belief - one particular to the patient which the physician could not have anticipated - as the basis for an informed consent claim. As the Supreme Court explained in Arndt v. Smith:

In other words, fears which are idiosyncratic, which do not relate directly to the material risk of a proposed treatment and which would often be unknown to a physician, cannot be considered. That is what ensures that the objective standard truly is based on the actions of a reasonable person. It means that a doctor will not be held responsible for damages attributable to a patient's idiosyncrasies.[^24]

Subjective Test

[230] I accept the evidence of the Plaintiff that he would not have chosen to undergo a total wrist fusion had he understood that a metal plate would be inserted in his wrist and that the surgery would eliminate all wrist movement. With this surgery he would not be able to cock his wrist of his left hand: a movement critical to his life and livelihood as a golfer.

[231] I find that he would have opted in all probability for one of the less drastic surgical options described by Dr. Axelrod: the four corner fusion or the proximal row carpectomy. Dr. Axelrod confirmed that these were good options for the Plaintiff retaining some range of motion and reducing, not eliminating pain. Given the information of a wrist fusion that he saw on the internet he may have chosen the four corner fusion.

[232] The chances of a successful surgery with the various options were not explained to the Plaintiff. The complication of RSD was not explained. Alternatively, with a full understanding not only of the potential benefits but also the potential risks and chances of success of the surgical options, the Plaintiff may have decided to continue to play through the pain relying on conservative treatments including cortisone when he was playing competitive golf or teaching.

[233] Dr. von Schroeder purported to give evidence not contained in his report relevant to the subjective and objective test about what the Plaintiff would have done, and what a reasonable man in the Plaintiff's shoes would have done had he been properly informed about the other surgical options.

[234] This evidence, in my view, goes well beyond his expertise as a surgeon. Whether or not the subjective and objective test is met in this case, is a question that I must determine, informed where appropriate with the benefit of the expert evidence.

[235] I accept the evidence of Dr. von Schroeder that he has some patients that are golfers and chose to proceed with a total wrist fusion and were happy with the result. That is not the end of the inquiry. I accept the evidence of Dr. Axelrod that the choice of surgical options was a trade off between level of pain and maintaining some wrist movement. The Plaintiff's case is unique. He was not just an amateur golfer for weekend pleasure. Golf was his life and livelihood.

[236] I do not accept the evidence of Dr. von Schroeder generalizing about the subjective and objective test, without taking into account the unique aspects of this particular patient.

[237] I conclude that it is certain, based upon the evidence, that had the Plaintiff been properly informed of the options, that the Plaintiff would not have had a total wrist fusion with a metal plate inserted in his wrist eliminating all movement.

[238] The Plaintiff has therefore amply met the subjective test.

Modified Objective Test

[239] I conclude that the objective test is also met. As I have outlined, I do not accept the evidence of Dr. von Schroeder on this issue.

[240] I find that a person in the shoes of the Plaintiff: a 73 year old man, in good health with golf as his livelihood, with arthritis in his wrist and an problem with pain if fully informed of the surgical options, with risks and benefits would probably have opted for one of the less drastic surgical options suggested by Dr. Axelrod before ever considering a total wrist fusion. A four corner fusion or a proximal row carpectomy would reduce, but not eliminate pain, but would maintain some wrist mobility precious for this golfer. Dr. Axelrod confirmed that these were good options given the localization of the Plaintiff’s arthritis. This would allow this person, who relies on golf for his livelihood to cock his wrist to be able to teach by demonstration, and to play competitive golf, with reduced pain.

[241] Alternatively, I conclude that a reasonable man in the shoes of the Plaintiff, fully informed of not only potential benefits but also the risks and chances of success of the proposed surgery may well have decided to play through the pain and pursue more conservative treatment options including cortisone.

[242] I conclude after a careful review of all of the evidence that it is clear, applying the modified objective test, that a reasonable person in the shoes of the Plaintiff properly informed, would not have chosen a total wrist fusion.

Damages

[243] In Reibl v. Hughes, the Supreme Court of Canada confirmed that an informed consent claim is a claim in negligence. Since damages are a constitutive element of the tort of negligence, a plaintiff must also prove that she suffered damages as a result of the procedure in order to establish her claim.

[244] This is a Simplified Procedure. The Plaintiff claims damages in the amount of $90,000.00.

[245] In submissions Mr. Manes suggested general damages of $20,000.00 for the pain and suffering and a loss of income of $20,000.00 per year for two years.

[246] The Defence made no submissions on the quantum of damages claimed.

[247] I conclude that the general damages in the amount of $20,000.00, is fair and reasonable. The Plaintiff went through two surgeries. His hand function improved after the second surgery, but has not improved to his functioning prior to the surgery. The Plaintiff had serious increased pain following the surgery. The pain for at least two years after the surgery was worse than his pre-operative state, in spite of the Plaintiff taking significant doses of Percocet medication. The Plaintiff lost his quality of life as a golf teacher and respected golfer. Today, he cannot play golf. He became socially isolated, and embarrassed to meet people he knew in his former life. As he lost his source of income, he lost his condominium. He is now living in his son's basement.

[248] The Plaintiff's income as a golf teacher and golf hustler/gambler is not a declared income. He worked part time for a friend as a cook earning $18,000.00 per year some time prior to the surgery. The Plaintiff testified that his range of earnings from golf teaching and golf hustling was between $20,000.00 to $70,000.00 per year for the five years prior to the surgery. The Plaintiff was overly optimistic as to how long he could have worked after the surgery- he suggested 15 years. Time does march on. I accept that he may well have been able to continue golfing and teaching for a significant period after age 73, but I conclude that he could not have continued to hustle and bet on golf games for many more years. His earnings as a cook at $18,000.00 a year were similar to the suggested range of earnings in golf.

[249] A two-year period with a loss of income is reasonable. I conclude that the sum of $40,000.00 for past loss of income in the circumstances is fair and reasonable

[250] The Plaintiff has clearly suffered damages for pain and suffering and for loss of income. The damage figures suggested by Mr. Manes were not challenged by the defence.

[251] I therefore award general damages in the amount of $20,000.00 and damages for past loss of income in the amount of $40,000.00.

[252] This action was commenced in April 2012. The Plaintiff is entitled to pre-judgment and post-judgment in accordance with the applicable rates stipulated in the Courts of Justice Act.

Costs

[253] When this proceeding commenced, the Plaintiff was represented by counsel. He is entitled to recover the costs for the period he was represented by counsel.

[254] Mr. Manes represented the Plaintiff at this trial pursuant to the Pro Bono Ontario organization. There is no reason why he should not be entitled to his costs if this is allowed by Pro Bono. Alternatively, I do not see why the costs should not be fixed and provided to the Pro Bono organization.

[255] If the parties cannot agree on costs, the Plaintiff may present his Bill of Costs, with any offers made. The parties may provide brief written submissions, not to exceed five pages on the issue of costs within 30 days of the release of these reasons.

[256] Again, I am grateful to both Mr. Manes, and his associate Mr. Nicholas Sampson, for agreeing to represent Mr. Solomon literally on the eve of trial. I also greatly appreciate the assistance by Mr. Anu Koshal and his associate Ms. Carolyn Humphrey providing the file to Mr. Manes and for cooperating in making the sudden transition seamless.

[257] The cooperative advocacy and generosity in this brief trial was remarkable. Counsel involved should be rightly proud.

J. Wilson J.

Released: May 28, 2018

COURT FILE NO.: Court File No. CV-12-447058

DATE: 20180528

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALBERT SOLOMON

Plaintiff

• and -

READ MOHAMED ALI ABUGHADUMA, THE SCARBOROUGH HOSPITAL, GENERAL SITE; JOHN DOE and JANE DOE

Defendants

REASONS FOR JUDGMENT

J. WILSON J.

Released: May 28, 2018

[^1]: St.-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53; Bafaro v. Dowd, 2008 45000 (Sup. Ct.), at para. 41, aff’d 2010 ONCA 188, 260 O.A.C. 70. [^2]: Suserski v. Nurse, 2008 ONCA 416, at paras. 5-6, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 298. [^3]: Videto et al. v. Kennedy (1981), 1981 1948 (ON CA), 33 O.R. (2d) 497 (C.A.), at paras. 12-13. [^4]: Brassard v. Germain, 1993 1 (Ont. C.A.), at 4. [^5]: See Cvjetkovic v. Gupta, 2016 ONSC 2322; Leblanc v. Hunt et al., 2011 ONSC 1333; Samuel v. Ho, [2009] O.J. No. 172; Hinsley v. Lin, 2016 ONSC 5947 (Div. Ct.) [^6]: Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880, at 889-900; Bollmon v. Soenen, 2014 ONCA 36, 315 O.A.C. 90, at paras. 21-23. [^7]: St.-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53; Bafaro v. Dowd, 2008 45000 (Sup. Ct.), at para. 41, aff’d 2010 ONCA 188, 260 O.A.C. 70. [^8]: Hopp v. Lepp, 1980 14 (SCC), [1980] 2 S.C.R. 192, at para. 34. See also Nichols v. Young, [2002] O.J. No. 505 (Sup. Ct.), at para 63, aff’d 2003 2917 (Ont. C.A.). [^9]: Van Dyke v. Grey Bruce Regional Health Centre, 2005 18841 (Ont. C.A.), at para. 67, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 355. [^10]: Cameron (Litigation Guardian of) v. Louden, [2000] O.J. No. 858 (Sup. Ct.), at para. 285, cited with approval in Bafaro v. Dowd, 2008 45000 (Sup. Ct.), at para. 41, aff’d 2010 ONCA 188. [^11]: Van Dyke v. Grey Bruce Regional Health Centre, 2005 18841 (Ont. C.A.) at para. 63, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 355. [^12]: Videto et al. v. Kennedy (1981), 1981 1948 (ON CA), 33 O.R. (2d) 497 (C.A.), at para 14. [^13]: Ellen I. Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto, Ont: Thomson Carswell, 2017) at p. 180. [^14]: White v. Turner (1981), 1981 2874 (ON SC), 31 O.R. (2d) 773, at p. 288. [^15]: See Asgari v. Jain, [2006] O.J. No. 2437, at para. 68; Felde v. Vein & Laser Medical Centre (2002), 14 C.C.L.T. (3d) 246, at para. 69; Dunn v. North York General Hospital, [1989] O.J. No. 402, at paras. 59-64. [^16]: Asgari v. Jain, [2006] O.J. No. 2437. [^17]: Ellen I. Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto, Ont: Thomson Carswell, 2017) at p. 169. [^18]: See Bryan v. Hicks, 1995 172 (BC CA), [1995] 10 W.W.R. 145 (B.C.C.A.); Ross v. Welch (2003), 18 C.C.L.T. (3d) 107 (Ont. S.C.J.). See also Doiron v. Haché, 2005 NBCA 75, 290 N.B.R. (2d) 79, at para. 98 [^19]: Doiron v. Haché, 2005 NBCA 75, 290 N.B. R. (2d) 79. [^20]: White v. Turner (1981), 1981 2874 (ON SC), 31 O.R. (2d) 773, at p. 288. [^21]: Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880, at 898-899; Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539, at para 17. [^22]: Bollmon v. Soenen, 2014 ONCA 36, at paras 21-23. [^23]: Arndt v. Smith, [1997] 2 S.C.R. 53, at para. 16. [^24]: Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539, at para. 14.