COURT FILE NO.: CV-12-00451386

DATE: 20180620

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NANCY KRAM

Plaintiff

– and –

JAMES OESTREICHER

Defendant

Nancy Kram on her own behalf

Moya J. Graham and Darshini Sinnadurai

for the Defendant

HEARD: March 12-16, 19, 2018

P.J. Monahan J.

[1] Nancy Kram (“Kram”) brings this medical malpractice action against Dr. James Oestreicher (“Oestreicher”), alleging negligence and lack of informed consent in respect of certain plastic surgeries he performed in 2009 and 2010. The central allegations in this action relate to the initial surgery performed by Oestreicher on June 15, 2009, an upper eyelid blepharoplasty and lower eyelid tightening surgery. The three subsequent surgeries, performed over the next 14 months, involved various attempts to reverse or modify the June 15, 2009 surgery.

[2] Kram alleges, amongst other things, that the June 15, 2009 surgery was not what she requested or expected and that Oestreicher failed to adequately inform her of alternative surgical techniques that he could have utilized. Kram also alleges that Oestreicher failed to obtain her informed consent for at least one of the subsequent surgeries he performed. She claims that she has been disfigured by these surgeries and has incurred, or will in the future incur, substantial costs to remedy the damage.

[3] In my view, Oestreicher adequately informed Kram of the risks, alternatives, and benefits of the cosmetic surgery he performed on June 15, 2009, and she consented to it. The surgery was reasonable in the circumstances and was performed as intended and in a competent manner. While Kram was displeased with the results of the June 15, 2009 surgery, expert evidence tendered at the trial indicated that the result was satisfactory. Moreover, I find that the subsequent three surgeries, although medically unnecessary, were performed competently and with Kram’s consent. Accordingly, I would dismiss Kram’s action with costs.

Background Facts

[4] Nancy Kram is a 56-year-old registered nurse currently employed at the Rockyview Hospital in Calgary, Alberta. She has lived in Calgary since 1994 and has been a registered nurse since 2000. She maintains active status with the relevant nursing regulator in Alberta, working shifts at the Rockyview Hospital on a “casual” basis. She was previously employed part-time, but in either 2007 or 2008 she chose to reduce her hours so that she could spend more time with her family.

[5] James Oestreicher is an ophthalmologist with a subspecialty in oculoplastic cosmetic and reconstructive surgery, licensed to practice in Ontario. He is a Full Professor in the Department of Ophthalmology and Vision Sciences at the Faculty of Medicine at the University of Toronto, and also operates a private practice focusing on surgeries in and around the orbital region. He has authored or co-authored numerous peer-reviewed publications and also maintains active membership and has held a leadership position in numerous professional associations, including the Canadian Ophthalmological Society, the Canadian Society of Oculoplastic Surgery and the American Society of Ophthalmic Plastic and Reconstructive Surgery (“ASOPRS”).

[6] Kram contacted Oestreicher initially by telephone and then by email on February 20, 2009 to discuss cosmetic surgical options for her eyes. Kram had previously undergone a number of cosmetic surgeries, including a facelift and lower eyelid blepharoplasty in May 2008 by Dr. Michael Kulick, a plastic surgeon in San Francisco, California. Through numerous email exchanges with Oestreicher, Kram explained that she had a number of concerns about the appearance of her eyes following the surgery with Dr. Kulick, including that her lower lids sagged and she had scleral show, that the corners of her eyes tipped down, and that she no longer had a sharp corner to her outer eye. She also was concerned over the fact that her upper eyelid covered more of the top part of her iris than she would have liked, giving her a “sleep look”.

[7] Oestreicher testified that since he was not able to examine Kram face-to-face, he wanted to assess her remotely by asking her to photograph herself pulling the lateral lower eyelid up. Based on Kram’s description of her desires, and his review of numerous photographs she subsequently sent, Oestreicher advised that Kram would likely benefit from lateral tightening of the lower eye region. Subsequently, Kram suggested that she would benefit from upper eyelid surgery as well, so that more of her iris would show.

[8] Kram was anxious to proceed with surgery and on April 16, 2009 she sent Oestreicher a deposit of $4400. On April 20, 2009, Kram wrote Oestreicher again indicating that she had not heard back from him and reiterating that she wanted to book the surgery as soon as possible. A week later, Oestreicher acknowledged receiving the deposit but inquired as to what specific surgery Kram wished to have performed. Oestreicher and Kram agreed that they would meet before the surgery to finalize surgical options.

[9] On May 4, 2009, Oestreicher sent Kram a letter outlining the surgical options discussed, namely, upper blepharoplasty and lower lid tightening, along with pricing. The cost for procedures on both her upper and lower eyelids was quoted as $5775. On May 26, 2009, Kram sent Oestreicher final payment for the surgery and made arrangements to travel to Toronto on June 15, 2009, where she would meet with Oestreicher for a physical examination and then have the surgery performed.

a. June 15, 2009 Surgery

[10] On June 15, 2009, Kram attended at Oestreicher’s office for a physical examination and a subsequent surgery.[^1] At trial, Oestreicher testified that while he does not have a present recollection of this meeting, he made notes contemporaneously during the assessment which would have reflected his observations. From the notes he made from this meeting, Oestreicher testified that the most salient of the points he captured about Kram’s surgical history was her prior lower lid blepharoplasty performed by Dr. Kulick in 2008. This surgery had been performed using an external approach, which Oestreicher regarded as undesirable in younger patients since it increases scarring and can pull the lower eyelid down. In his view, the aesthetic issue he was being asked to address by Kram, namely, that her lower eyelids were “pulled down”, was likely caused by vertical scarring resulting from the 2008 lower lid blepharoplasty.

[11] Oestreicher’s notes from his examination of Kram on June 15, 2009 included a reference to “slight sag”, scleral show and “stiff”, reflecting the results of a physical assessment he conducted involving touching Kram’s eyelids using a form of snapback and distraction tests. Through this physical examination, Oestreicher confirmed that there was scarring and lower lid laxity.

[12] Oestreicher testified that his plan was to use a tarsal strip surgical technique to perform the lower lid tightening, but he did not use the words “tarsal strip” during his discussion with Kram. He determined that the tarsal strip was appropriate for Kram because, through the tests he performed, he could see Kram’s eye contour and scleral show could be addressed with lateral tightening. He did not think a canthopexy or “mini tarsal strip” approach was a medically reasonable alternative for Kram because the degree of scarring and laxity he observed on physical assessment would likely make those techniques futile. In his view, Kram fell into a small minority of cosmetic surgery patients who, because of scarring from prior blepharoplasty, require a tarsal strip technique in order to address their concerns.

[13] Oestreicher’s notes indicate that he reviewed the risks of the procedure, including dryness, swelling, risks of bleeding, and infection. His notes also indicate that he advised that the results “may not be perfect and could be worse” and may require further surgery. He testified that Kram signed a three-page consent form which described the surgery to be performed as “Bilateral Lower Lid Repeat Ectropion Repair and Blepharoplasty Revision and Upper Lid Blepharoplasty”.

[14] Kram testified that Oestreicher did not explain the nature of the surgery he was proposing to perform. Nor did Oestreicher explain the risks, or that the result could be that “she would look worse”. Kram testified that she believed that Oestreicher was going to “elevate the corners of her eyes”. She also stated that in telephone discussions with Oestreicher prior to meeting him on June 15, 2009, she had requested that he perform a canthopexy, and that she assumed this was the lateral tightening procedure that he was intending to perform.

[15] Kram acknowledges that she signed an informed consent form prior to surgery on June 15, 2009. However, she testified that she believes she signed a different form, one which had only “Upper Lid Blepharoplasty” listed on the third line as the procedure to be performed, with two blank lines above it. She also testified that the third page of the consent form she signed on this date was a “Governing Law and Jurisdiction Agreement.”

[16] Oestreicher’s notes indicate that the surgery went according to plan and there were no complications. However, Kram testified that as soon as she returned to her hotel she knew right away that the “wrong surgery” had been performed on her lower eyelids. She believed that the lower lid tightening had been performed using a “full thickness incision”. She was also concerned that the corners of her eyes had not been elevated as she had requested.

[17] The next day Kram attended at Oestreicher’s office for a post-operative follow-up. Oestreicher’s notes indicated that Kram had had a “nice result”. Kram testified that she questioned Oestreicher during this meeting and told him that the corners of her eyes were not elevated as she had requested. However, Oestreicher’s notes do not reflect any complaints or concerns expressed by Kram.

[18] On June 21, 2009, Kram emailed Oestreicher, requesting clarification about whether he had “cut out a portion of her lower eyelid” in completing the lower lid tightening, as in a surgical photograph she attached. Oestreicher responded by email the next day explaining that he had employed a “lateral tarsal strip” technique. Kram did not raise any further questions at that time regarding the surgery.

b. August 4, 2009 Surgery

[19] In early July 2009, Kram emailed Oestreicher complaining of a “sharp poking sensation” in her right eye. It was determined that this discomfort was caused by some sutures that had been inserted during the June 15, 2009 surgery. Kram returned to Toronto on July 24, 2009 to have a suture removed by Oestreicher. Oestreicher also made arrangements for Kram to have some further suture material removed by a colleague in Calgary on July 29, 2009. The suture removal was successful and did not pose any further difficulties.

[20] During the July 24, 2009 meeting prompted by the discomfort from the sutures, Kram indicated that she was not happy with the results of June 15, 2009 surgery and wanted it reversed. Kram’s dissatisfaction is confirmed by Oestreicher’s contemporaneous notes documenting that Kram felt that her eye felt “tethered” and that she may want the tarsal strip to be released.

[21] Oestreicher testified that he and Kram had a telephone conversation on July 31, 2009 during which they discussed the risks, alternatives, and benefits of a procedure to partially reverse the effects of the tarsal strip technique that had been performed on June 15, 2009. This telephone conversation is documented in Oestreicher’s contemporaneous notes. Oestreicher testified that during this discussion, he indicated that attempting to reverse the earlier surgery so soon after it had been performed was “not his first choice”; he further explained that the tightness Kram was experiencing was common, and that it would relax if they waited. Oestreicher also testified that he explained that the tarsal strip could not be fully released all at once and would require gradual loosening.

[22] In her testimony, Kram was unclear as to whether in fact she had spoken with Oestreicher on July 31, 2009. She did acknowledge that she was told by Oestreicher on July 24, 2009 that he was reluctant to perform more surgery at that time and wanted her to wait an additional 6 months before attempting to reverse the effects of the tarsal strip. However, she was anxious to have the reversal of the tarsal strip performed as soon as possible and it was agreed that this would be done on August 4, 2009

[23] On August 4, 2009, Oestreicher performed a partial reversal of the earlier tarsal strip procedure, identified as a “bilateral ectropion repair and lateral canthopexy.” Kram signed an informed consent form prior to surgery. Oestreicher testified he was pleased with the outcome of the surgery.

[24] On August 5, 2009, Oestreicher examined Kram during a post-operative visit. Oestreicher performed a physical assessment and found that the eyelids were in a “good position” and made contemporaneous notes of the same in his medical chart. In response to photographs sent to him by Kram in the weeks that followed, Oestreicher noted some redness in the lid but indicated that it was in a good position and meeting at a good angle with the upper lid.

c. April 19, 2010 Surgery

[25] Although Kram did not contact Oestreicher for the balance of 2009, she testified that she remained unhappy with the results of her surgery. Between December 2009 and February 2010, she attended consultations with a number of plastic surgeons in Beverly Hills, California. One of the plastic surgeons she consulted, Dr. Norman Shorr, indicated that he would not perform surgery on Kram at that time. Another plastic surgeon, Dr. Kami Parsa, proposed to undertake “eye reconstruction surgery” at a cost of US$15,310.

[26] Because the quote from Dr. Parsa was “very expensive”, Kram decided to resume discussions with Oestreicher. They exchanged numerous emails between February and April 2010. Kram had a variety of concerns, including that her upper eyelids were not lifted up as she had requested; that her eyelids felt too tight; that there were wrinkles on her eyelids which she believed had been caused by having too much fat removed; and that she would like the corners of her eyes to be reconstructed back to the way they had been prior to surgery with Oestreicher.

[27] Dozens of emails were exchanged between Oestreicher and Kram from mid-February until early April 2010. In numerous emails, Kram offered her suggestions as to what surgical techniques would be most appropriate to deal with her concerns. Kram’s proposals appear to have been based on discussions she had had with other surgeons or from research she had conducted via the internet.

[28] Oestreicher reviewed all of her suggestions but did not find any of them to be practical or viable. In each case, he offered an explanation as to why her suggestions would not work or would result in significant negative complications. For example on March 9, 2010, Kram had emailed a suggestion for a surgical procedure, based on photographs she had found on the internet involving surgery performed on cancer patients. Oestreicher explained to Kram that the techniques used on these patients resulted in significant lateral scarring not visible in the photographs Kram had sent.

[29] On March 10, 2010, in response to Kram’s request to lengthen her lower eyelids, Oestreicher proposed a variant of a tenzil flap procedure. Subsequently, on March 16, 2010, Oestreicher provided a drawing and a step-by-step explanation of the procedure. On March 24, 2010, Kram indicated that she did not like the idea of the tenzil flap. She also complained about her eyelids feeling too tight. Kram offered a number of additional suggestions as to what surgery she thought should be performed, and referred Oestreicher to a website outlining her ideas.

[30] On March 26, 2010, Oestreicher emailed Kram stating that he felt “we are going around in circles.” He asked her to put down in one or two sentences what she wished to achieve by further surgery. He indicated that he would canvass his colleagues for ideas, but “if no one has a better idea than mine, I cannot do your surgery unless you and I agree that that is an acceptable strategy.” Kram agreed and noted that unless they were in agreement as to what surgery should be performed, it would have to be postponed to a later date.

[31] Over the next few weeks the parties continue to discuss Oestreicher’s proposed tenzil flap procedure, in addition to Kram’s own suggestions for surgery. On April 1, 2010, Kram informed Oestreicher by email that she did not want the tenzil flap.

[32] Oestreicher and Kram spoke by telephone on April 12, 2010. Oestreicher testified that during that call he explained why a further surgery that had been suggested by Kram was not feasible. He again explained how and why the surgery he was recommending, a tenzil flap variant along with a left hard palate graft, would respond to Kram’s concerns.

[33] It is evident that the parties reached agreement during the April 12, 2010 telephone discussion as to the surgery to be performed by Oestreicher, and that this surgery would be proceeding on April 19, 2010. This is reflected in an email sent by Oestreicher on April 13, 2010 with a subject line “time on April 19”. In this email Oestreicher indicates that “right now it looks like we will want you to arrive at 2:30 for a 3 PM start… Call us Monday a.m. to check… Thanks.”

[34] In Kram’s view, she had not agreed to the tenzil flap variant being proposed by Oestreicher. However on April 16, 2010, Kram emailed Oestreicher stating, amongst other things, that she is “looking forward to having surgery”. None of the emails between April 12 and April 19, 2010 record the specifics of the surgery that the parties had agreed would be performed on April 19, 2010.

[35] Kram returned to Toronto and attended at Oestreicher’s office for surgery on Monday, April 19, 2010. Oestreicher documented a discussion with Kram which included the risks, alternatives and benefits of the procedure to be undertaken. Oestreicher’s notes from this meeting include drawings that are the same as those he had sent to Kram on March 16, 2010, showing the tenzil flap procedure. Oestreicher also testified that he had previously discussed the possibility of performing another procedure to deal with a problem she had identified with her left upper eyelid. His preoperative notes from April 19, 2010 indicated that Kram did not want this procedure performed and, therefore, he would not proceed with it.

[36] An informed consent form entered into evidence by Oestreicher described the surgery to be performed as “left lower lid elevation, hard palate, mucosal graft, bilateral lateral canthopexy, left traction suture tarsorrhaphy.” However, in her testimony Kram could not recall having signed this particular form and disputed having signed it. She acknowledged that the signature on the form looked like hers, but she believes it to be a photocopy of her signature and not authentic.

[37] Oestreicher performed the tenzil flap variant surgery on April 19, 2010, the goal of which was to “lengthen the lids horizontally and to bring up the lower left lid.”

[38] Three days later, after returning to Calgary, Kram emailed Oestreicher stating that she does not like “this tenzil that you have given me”, and that she would “like to come back and have you reverse this procedure before it heals.” She indicates that she “was looking forward to the surgery because I wanted things to work out”, but that in light of the results she was “thinking about taking out the stitches so it does not heal bunched up and so my eyelid can go back upward.”

[39] Oestreicher replies later the same day (April 22, 2010) indicating that he believes they “have accomplished a lot with the operation.” He explains a number of benefits resulting from the surgery and indicates that “you have to be patient and let it heal to gain these benefits.” He states that any attempt to reverse the procedure immediately would be inappropriate and carry significant risks, and that “if you tamper with it yourself I cannot be responsible for your care anymore.” He indicates he will try to call her that evening or the next day.

[40] It is evident that the parties spoke later in the day on April 22, 2010 since at 9:29 PM that evening Kram sent an email to Oestreicher indicating that she would “wait a while” but that she remained upset with the results of the surgery.

[41] On April 29, 2010, Kram sent some photographs to Oestreicher. He responded that “for this early, it looks excellent… More open vertically and horizontally, and that left lower lid has come up nicely.” On May 7, 2010, after reviewing additional photographs, Oestreicher writes that “I am actually encouraged by the photographs you have been sending… I think things are improving quite well and rapidly.” He further indicates that “this sort of thing is judged in a year, not a month… But you are improving a lot and quickly.”

d. August 17, 2010 Surgery

[42] Beginning in the middle of June 2010, Kram began sending a series of emails complaining of infections in her eyes and requesting that Oestreicher reverse the tenzil flap procedure he had performed on April 19, 2010. Oestreicher remained reluctant to reverse the tenzil flap procedure so soon after it had been performed. In addition to extensive email correspondence, Oestreicher and Kram spoke by telephone on at least three occasions in late June and July 2010.

[43] On August 17, 2010, Kram returned to Oestreicher for further surgery to address her concerns. He performed a “bilateral lateral canthopexy” aimed at sharpening the corners of Kram’s eyes. Oestreicher testified that Kram signed an informed consent form prior to surgery which described the procedure to be performed as a “bilateral lateral canthopexy.” However, Kram took issue with the consent form entered into evidence at trial, stating that the form she signed described the surgery to be performed as a “lateral canthoplasty”. She believes that the first page on the consent form she signed “was tossed out and another page was substituted”. She also stated that she dated her own form whereas this one had someone else’s writing in the dateline.

[44] On August 23, 2010, Kram reported a dehiscence in the sutures on her left eyelid. She returned to Toronto on August 24, 2010 and had the dehiscence repaired successfully by Oestreicher.

e. Oestreicher refuses to perform further surgeries on Kram

[45] In the fall of 2010, Kram remained dissatisfied with the results of her various surgeries with Oestreicher. She offered a number of suggestions about further surgeries that she wanted Oestreicher to perform to deal with her concerns. Oestreicher reviewed her suggestions but considered them to be experimental and unsuitable. In his testimony, he indicated that Kram started “coming up with increasingly bizarre ideas” about artificial materials that could be implanted and tested on her abdomen.

[46] Finally, on December 9, 2010, Oestreicher had a telephone conversation with Kram in which he advised that he did not have any further reasonable surgical options for her. Oestreicher confirmed this in a letter dated December 10, 2010, in which he stated that he “[did] not have a surgical solution for the concerns that you have”, and that he was “not willing to perform what I would consider overly uncertain surgery”. Although he indicated that “I would very much like to help you”, he had come to the view that “it would be improper to proceed any further and I am withdrawing myself from your care.” He also offered to refund her the money that she paid for June 15, 2009 surgery if she signed a release.[^2]

[47] Kram continued to email Oestreicher in December 2010 and January 2011 in the hopes that he would agree to perform more surgery. However he repeated his view that he had no further surgical options to offer her and could not assist her further.

[48] On April 17, 2012, Kram commenced this action against Oestreicher seeking, amongst other things, damages for pain and suffering and permanent disfigurement, out-of-pocket costs and the cost of eyelid reconstruction.

f. Kram Pursues Further Cosmetic Surgeries In California

[49] From May 2011 to April 2013, Kram consulted with 7 different surgeons in California. These surgeons either refused to take Kram on as a patient, or she declined to proceed with the surgeon in question.

[50] Eventually Kram found Dr. Robert Levine in Beverly Hills, California. Between April 2013 and July 2014, Kram had six more cosmetic eyelid surgeries performed by him, as follows: (i) on April 15, 2013, Kram had “reconstruction of lid margins, opening of lateral canthus, both eyes, [and] related procedures, both eyes”; (ii) on April 17, 2013, Kram had a “removal of graft in left lower lid, lateral canthal reconstruction in both eyes, [and] any other related procedures”; (iii) on April 23, 2013 Kram had a dehiscence repaired; (iv) on June 11, 2013, Kram had an “open left lateral canthus in addition removal left lateral canthus lesion, bilateral left lower lid blepharoplasty, [and] bilateral medial fatty tissue removal upper lids”; (v) on April 2, 2014, Kram received “fascia lata graphs, reconstruction of lid margins, any other related procedures, right and left eyes”; (vi) on June 25, 2014, Kram received “bilateral endotine implants, revision of left eye fascia lata, reconstruction of left lower lid margin, release of lid retraction left upper lid, [and] any other related procedures”; and (vii) on July 16, 2014, Kram had a “removal of endotine implant from left eye, [and] any other related procedures”.

g. Exposure Keratitis and Cross-Eye Claims

[51] In late 2017, Kram amended her claim to include claims for exposure keratitis and crossed eyes. She indicates that in late 2016, she began having difficulty focusing and seeing. She also noticed a foreign body sensation in her left eye that was increasing in frequency and strength, resulting in discomfort. She has experienced increasing redness and dryness to both eyes, causing increasing discomfort. Upon attending an eye exam she was informed that her visual acuity in her eyes had declined and was given glasses prescription with prism lenses for alignment of her eyes.

Issues

[52] The issues that arise in this proceeding are as follows:

1. whether Oestreicher breached his duty to provide reasonable care during the June 15, 2009 surgery by

a. performing the lower lid lateral tightening using a tarsal strip technique (rather than a canthopexy technique); or

b. performing the upper blepharoplasty in an improper manner;

2. whether Oestreicher failed to obtain Kram’s informed consent for the June 15, 2009 surgery by

a. failing to offer Kram a canthopexy as an alternative to the tarsal strip technique;

b. failing to properly describe the nature of the surgery to her; or

c. performing the tarsal strip procedure without Kram’s consent;

3. whether Oestreicher failed to obtain Kram’s informed consent for the April 19, 2010 surgery by performing a variant of a tenzil flap procedure, which she had not agreed to undergo;

4. whether Kram’s claims for negligence and informed consent are statute barred;

5. whether any breach of Oestreicher’s duty to Kram resulted in the exposure keratitis and/or crossed eyes of which she now complains; and

6. the quantum of Kram’s damages, in the event that Oestreicher is found liable.

Expert Evidence

a. General Principles

[53] With few exceptions, in medical negligence cases, issues regarding the expected standard of care, requirements of informed consent, and causation generally require expert evidence. This is particularly the case in considering issues relating to the standard of care applicable to physicians. The reason for this is that courts do not have the knowledge or expertise to determine whether a physician has conducted him or herself properly in the relevant field of medicine. It is not the role of the Court to speculate about the standard of care applicable to diagnosis and treatment in the absence of expert evidence.[^3]

[54] Expert evidence is also relevant in determining issues relating to informed consent. Although expert medical opinion is not determinative on 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] Similarly, given the complexity of medical malpractice cases, expert evidence also plays an important role on issues of causation.

[55] There are standards that expert opinion evidence must meet before it will be admitted. The expert’s prior training, experience, and study in the field must have equipped him or her with the necessary degree of knowledge and skill so as to enable the witness to provide the opinion evidence which the party proposes to tender. The witness must be shown to have obtained “special or peculiar knowledge through study or experience in respect of the matters in which he or she undertakes to testify.”[^5]

[56] The accepted framework for assessing the admissibility of expert opinion evidence was first established by the Supreme Court of Canada in Mohan and later refined by the Court of Appeal in R. v. Abbey.[^6] At the first stage of the inquiry, there are four threshold preconditions that the proponent of the evidence must establish in order for the proposed expert opinion to be admissible: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) a properly qualified expert.[^7]

[57] The second stage of the inquiry involves a cost-benefit analysis of whether otherwise admissible expert evidence should be excluded because its probative value is overborne by its prejudicial effect. At this stage, the main consideration is whether the “expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.”[^8]

b. Expert Evidence in This Case

[58] There were two physicians called upon to give medical opinion evidence at trial. Dr. John Shamoun, a plastic surgeon licensed to practice in California, Texas and the United Arab Emirates, testified for the Plaintiff. Dr. John Harvey, an ophthalmologist and oculoplastic surgeon licensed in Ontario, testified for the defendant.

[59] Defendant’s counsel challenged the admissibility of Dr. Shamoun’s expert testimony on a number of grounds.

[60] First, defendant’s counsel argued that Dr. Shamoun, a plastic surgeon, was not qualified in Oestreicher’s subspecialty, namely, ophthalmology with a subspecialty in oculoplastic surgery. Dr. Shamoun is not neither an ophthalmologist nor an oculoplastic surgeon. For the past 10 years, his clinical practice has been 50% cosmetic plastic surgery below the clavicle, and 50% cosmetic plastic surgery above the clavicle. Of his practice above the clavicle, only 15 to 20% involves eyelid surgery, and those surgeries are often in conjunction with other facial rejuvenation procedures. Dr. Shamoun testified that he has used the tarsal strip technique at issue in relation to the June 15, 2009 surgery “numerous times” but does not do it “routinely” on his patients.

[61] Defendant’s counsel also challenged the admissibility Dr. Shamoun’s evidence on the basis that he is not licensed in Ontario, has never practised here, and thus has no knowledge of the relevant standard of care in this jurisdiction. Counsel argued that foreign specialists proffered as experts cannot simply apply their knowledge and skill from their home jurisdiction and interpret local guidelines or literature to opine on the standard of care in Ontario. Some actual first-hand knowledge, experience and training in the local jurisdiction is required.[^9]

[62] After conducting a voir dire on the issue, I decided to qualify Dr. Shamoun as an expert on eyelid surgery in Ontario during the relevant time, namely, between 2009 and 2012. With respect to the objections raised by defendant’s counsel, I agree, as a general proposition, that experts in medical malpractice cases should be qualified in the particular subspecialty at issue in the proceeding. Further, it is obviously necessary for the expert to understand and be familiar with the standard of care in Ontario.

[63] Having carefully considered the objections raised by the defendant, I note that the concerns identified are certainly relevant in determining the weight to be attached to Dr. Shamoun’s evidence. That said, in the particular circumstances of this case, I do not believe it would be fair or appropriate to exclude his evidence. Dr. Shamoun regularly performs eyelid surgeries and is familiar with the tarsal strip technique employed by Oestreicher in this case. He further testified that the standard of care applicable to surgery of this type was, in his view, identical in California and in Ontario. In indirect support of this conclusion, I note that the ASOPRS, of which Oestreicher is a Preceptor,[^10] establishes standards for oculoplastic surgeons in both Canada and the United States.

[64] An additional factor relevant to the admissibility of Dr. Shamoun’s evidence is the fact that Kram is a self-represented plaintiff. While the amount of leeway to be given to self-represented litigants is not unfettered, trials with self-represented litigants present a special and challenging task for the Court to ensure trial fairness. Absent Dr. Shamoun’s evidence, it would have been extremely difficult to fairly appreciate the nature and validity of the Plaintiff’s concerns on the applicable standard of care. On balance, I exercised my discretion to admit Dr. Shamoun’s evidence on the basis that he is sufficiently qualified and his evidence is necessary in the context of this litigation.

[65] In qualifying Dr. Shamoun as an expert, I further ruled that his opinion on standard of care was limited to criticisms of the care provided through the June 15, 2009 surgery. This was because Dr. Shamoun’s expert report did not disclose criticisms of any other aspects of Oestreicher’s care.

[66] The professional qualifications of the defence expert, Dr. Harvey, were not at issue. He has been licensed as an oculoplastic surgeon in Ontario for nearly 30 years. He maintains an active clinical practice that focuses only on the orbit, eyelids and lacrimal systems. He is a Professor Emeritus and former Head of the Division of Ophthalmology at McMaster University in Hamilton Ontario. He holds professional memberships with the Canadian Ophthalmological Society, the Canadian Society of Oculoplastic Surgery, and the ASOPRS. He has published over 50 articles in peer-reviewed journals and has authored dozens of non-peer reviewed publications and presentations, most of which deal with issues relating to oculoplastic surgery.

[67] The only concern with respect to Dr. Harvey was whether his prior professional association with Oestreicher might be thought to impair in some way his objectivity and independence. Dr. Harvey testified that he has known Oestreicher since the early 1990s. He has attended conferences where Oestreicher was present and he has co-authored a number of articles with him over the years. However the last of these co-authored articles was published in 2008.

[68] Prior to qualifying Dr. Harvey is an expert, I questioned him with respect to his prior professional connections with Oestreicher and had an opportunity to observe his demeanour and approach. I also note that he has executed a Form 53 acknowledging his duty to the Court to provide opinion evidence that is fair, objective, and nonpartisan. Based on these inquiries, I was entirely satisfied with his independence and objectivity and I qualified him as an expert in oculoplastic surgery in Ontario from 2009 to 2012.

Standard of Care

[69] As noted above, Kram alleges that Oestreicher breached the applicable standard of care in respect of the June 15, 2009 surgery on the following two grounds:

a. Oestreicher performed the lower lid lateral tightening using a tarsal strip technique, rather than a canthopexy technique; and

b. Oestreicher performed the upper blepharoplasty in an improper manner.

[70] Kram argued that Oestreicher’s care fell below the applicable standard of care based on the expert testimony of Dr. Shamoun. Dr. Shamoun was of the view that the tarsal strip procedure performed by Oestreicher on June 15, 2009 should not have been performed, and that it resulted in the need for major reconstructive surgery to try and restore her appearance. In his view, the tarsal strip “lid shortening procedure surgery” performed by Oestreicher is an operation “fraught with numerous complications that are not only irreversible but also disfiguring when performed on the wrong patient.” He believes that the tarsal strip procedure should be reserved for patients with “moderate to severe lid eversion, and paralytic ectropion, and correction of horizontal lid laxity.” He argues that Kram did not present with any of these conditions.

[71] Dr. Shamoun contends that Oestreicher should have performed a canthopexy rather than the “destructive lid shortening type of canthoplasty” undertaken through the tarsal strip. He opined that Oestreicher failed to consider this alternative because Oestreicher determined from the very beginning that he was going to employ the tarsal strip procedure “no matter what”. In his view “that’s the problem with this case”. Dr. Shamoun expressed the opinion that Kram has been transformed “from a beautiful woman with almond shaped eyes” into an adult with “a beady eye deformity which was created by an elective cosmetic procedure… which should NEVER [have] been performed.”

[72] Dr. Shamoun was also critical of the upper eyelid blepharoplasty on the basis that too much excess skin was removed. In his view the upper eyelid procedure ought to have been done in a “less aggressive” manner.

[73] In contrast, Dr. Harvey opined that Oestreicher met the requisite standard of care in the June 15, 2009 surgery in all respects. In his view, Oestreicher carried out his examinations and evaluations in a thorough and competent manner. Oestreicher was attentive to Kram’s needs and tried to address her concerns at all times.

[74] Dr. Harvey notes that Dr. Shamoun takes issue with the lateral tarsal strip operation carried out by Oestreicher on June 15, 2009, repeatedly referring to the operation as a “shortening” operation. Dr. Harvey points out that the lateral tarsal strip operation employed by Oestreicher was a lid tightening as opposed to a lid shortening procedure. In Dr. Harvey’s view, Dr. Shamoun is simply incorrect when he “repeatedly mischaracterizes the nature and purpose of the lateral tarsal strip procedure.” The operation does not shorten the length or appearance of the patient’s eyelids.

[75] Dr. Harvey also comments on Dr. Shamoun’s recommendation that Kram would have benefited from a “simple canthopexy procedure.” According to Dr. Harvey, a “canthopexy” is by definition a tightening procedure. He further observes that there are many different ways to perform a canthopexy, one of which is to do the very lateral tarsal strip operation performed by Oestreicher on June 15, 2009. Dr. Harvey suggests that, although Dr. Shamoun is recommending a different tightening procedure, “there is no real distinction between what Dr. Shamoun recommends and what Dr. Oestreicher did.”

[76] Dr. Harvey testified that Oestreicher’s preoperative assessment of Kram was crucial in determining which surgical technique was appropriate in her case. In his view, the finding of scarring from Kram’s prior blepharoplasty was the key element that made the tarsal strip technique reasonable. In his experience, the lateral tarsal strip technique is more effective for tightening and elevating the eyelid than the canthopexy recommended by Dr. Shamoun. Dr. Harvey emphasized that, through his physical examination, Oestreicher would have been able to feel the amount of scarring from the prior blepharoplasty and determine that a tarsal strip procedure was appropriate in the circumstances.

[77] Dr. Harvey was also of the view that the upper eyelid blepharoplasty performed on June 15, 2009 met the applicable standard of care because it was modest and very little fat was taken out. In his opinion the procedure was reasonable, if requested by the patient, because there was a redundancy of skin in the upper eyelid. He also opined that this aspect of the June 15, 2009 surgery was properly performed.

[78] For a number of reasons, I prefer the evidence of Dr. Harvey to that of Dr. Shamoun. First, as outlined previously, Dr. Harvey is both an ophthalmologist and an oculoplastic surgeon licensed to practice in Ontario. His clinical work deals exclusively with the orbital region and he has performed thousands of blepharoplastys on the upper and lower eyelids using various surgical techniques, including the lateral tarsal strip at issue in this proceeding. This is in contrast to Dr. Shamoun, a plastic surgeon as opposed to an ophthalmologist or an oculoplastic surgeon, and whose clinical practice is not focused on eyelid surgery.

[79] Secondly, Dr. Harvey reviewed the entire documentary record available in this case, including the transcripts of the examinations of Kram and Oestreicher, all relevant medical records from Oestreicher as well as Kram, and all of the emails, photographs and other correspondence exchanged between the parties. In contrast, Dr. Shamoun reviewed only handpicked materials that Kram had sent to him. For example, it became apparent in cross-examination that Dr. Shamoun only reviewed certain emails that had been provided to him by Kram; significantly, he had not seen much of the relevant email correspondence between Kram and Oestreicher in the months leading up to the June 15, 2009 surgery. Nor did he review the discovery transcripts in which Oestreicher explained the basis of his conclusion that the tarsal strip procedure would best accomplish the goals expressed by Kram.

[80] Thirdly, Dr. Harvey testified in a candid, forthright and direct manner. He was clearly familiar with all aspects of matters relevant to the litigation. In contrast, Dr. Shamoun seemed unfamiliar with many relevant details. He referred repeatedly to the tarsal strip technique as a “lid shortening procedure”. However, as Oestreicher testified both on discovery and at trial (as confirmed by Dr. Harvey), the particular tarsal strip technique employed in Kram’s case was a lid tightening as opposed to a lid shortening procedure. Moreover, Dr. Shamoun claimed that Oestreicher had decided to employ the tarsal strip technique from the very beginning of his dealings with Kram “no matter what” and for this reason did not consider any other alternatives. In fact, however, the uncontradicted record is that Oestreicher employs the tarsal strip technique in only approximately 1% of his cosmetic surgery patients. He testified both on discovery and at trial that he decided to employ the tarsal strip technique in Kram’s case because of the significant scarring from her prior lower eyelid surgery. Because Dr. Shamoun had not reviewed the entire record, he incorrectly assumed that Oestreicher was single-mindedly intending to perform the tarsal strip procedure without regard to available alternatives. This conclusion is not supported by a fair reading of the entire record

[81] Accordingly, I attach little or no weight to Dr. Shamoun’s evidence regarding the standard of care applicable to the surgery performed by Oestreicher on June 15, 2009 and I prefer the evidence of Dr. Harvey in all respects, including where he differs from Dr. Shamoun.

[82] Fundamentally, the question of whether the tarsal strip technique was reasonable and appropriate comes down to a question of what degree of effectiveness and tightening was required in Kram’s case. Both Dr. Harvey and Dr. Shamoun agreed that this was best determined by a physical assessment. Only Oestreicher had the benefit of the physical assessment prior to the June 15, 2009 surgery. He made the judgment that the degree of vertical scarring created by the prior blepharoplasty required the use of the tarsal strip technique. Dr. Harvey expressed the opinion that this conclusion cannot be meaningfully second-guessed by looking at photographs.

[83] Dr. Harvey testified that the lateral tarsal strip technique used by Oestreicher is a common canthopexy technique that he uses frequently in his practice. He further was of the opinion that the rationale underlying the decision to employ the tarsal strip, being scarring from previous blepharoplasty, was reasonable and accords with his experience in his own practice. Dr. Harvey agrees with Oestreicher’s decision to use the lateral tarsal strip technique in the circumstances, and I accept this opinion.

[84] Assuming that the decision to utilize the tarsal strip technique was reasonable, was it performed in a competent manner? I note that Dr. Shamoun’s objection was focused on the choice of surgical technique, as opposed to the manner in which it was carried out. It is clear in any event that the surgery was carried out exactly in the manner contemplated. Oestreicher’s postoperative note indicates that the June 15, 2009 surgery went exactly as planned without any complications. The next day during postoperative follow-up, Oestreicher examined Kram and noted that she had a “nice result”. In early July 2009, after receiving photographs from Kram, Oestreicher noted that “it does not look like you need any more surgery, things look pretty good!” Dr. Harvey agreed with this assessment based on photographs of Kram dated May 28, 2012, which in his opinion show a satisfactory outcome.

[85] With respect to the upper lid blepharoplasty performed on June 15, 2009, Dr. Shamoun was of the view that too much tissue was removed, resulting in hollowness of Kram’s eyes. However Shamoun failed to explain how this criticism involved a breach of the applicable standard of care. Moreover, Oestreicher’s operative note shows that a “modest” amount of tissue was removed in the surgery. Dr. Shamoun made no reference to this operative note in his expert report or his testimony. I find Dr. Shamoun’s evidence on the manner in which the upper eyelid surgery was performed on June 15, 2009 to be of little assistance to the Court. Dr. Harvey testified that in his opinion the upper blepharoplasty was conservatively performed and I accept this opinion.

[86] There is no doubt that Kram was dissatisfied with the result of the June 15, 2009 surgery. Dr. Harvey did concede, reasonably and candidly, that Kram’s outcome was “satisfactory” but not “perfect” and that there was some rounding of the canthal angles following her surgeries with Oestreicher. However, Dr. Harvey was categorical in his view that the results of the June 15, 2009 surgery achieved the intended aims and there is no breach of the applicable standard of care.

[87] I would further note that Kram’s experience with other cosmetic surgeons suggested that it was not uncommon for her to be dissatisfied following a cosmetic surgery and to seek to have that surgery reversed or corrected in some way. For example, after her 2008 surgery with Dr. Kulick, Kram was dissatisfied and returned to him looking for more surgery to “fix up” the prior surgery. When Dr. Kulick declined, Kram found another doctor in Los Altos, California to remedy or correct what she viewed as an inadequate result.

[88] Kram demonstrated the same pattern during her treatment by Dr. Levine in 2013 and 2014. Not only did Kram have Dr. Levine reverse one of Oestreicher’s prior procedures (removal of the hard palate graft inserted on April 19, 2010), she also had Dr. Levine reverse one of his own procedures less than one month after it was initially performed. In fact, her treatment history with Dr. Levine reinforces a pattern of seeking out cosmetic surgery, being displeased with the result, and then demanding that it be immediately reversed.

[89] The plaintiff has the onus to establish all the elements of negligence on a balance of probabilities. I find no basis upon which it could be concluded that the June 15, 2009 surgery performed by Oestreicher failed to meet the requisite and applicable standard of care and I would dismiss this aspect of her claim.

Informed Consent

[90] To succeed in a claim for lack of informed consent, the plaintiff must establish, among other things, that there was inadequate disclosure by the physician of the nature of the treatment, its material risks, or reasonable alternatives.[^11] Here, Kram argues that she was not informed of alternatives to the tarsal strip procedure performed by Oestreicher on June 15, 2009. She maintains that Oestreicher should have offered the alternative of a canthopexy rather the tarsal strip procedure. In addition, Kram argues that Oestreicher failed to properly describe the tarsal strip procedure that he intended to employ. In fact, Kram alleges that the “wrong surgery” was performed on her lower eyelids on June 15, 2009. Kram also alleges that she did not consent to the tenzil flap procedure performed by Oestreicher on April 19, 2010.

a. Informed Consent for June 15, 2009 Surgery

[91] Dealing first with the lower eyelid tightening performed on June 15, 2009, Kram testified that she had requested a “canthopexy” to elevate the corners of her eyes. She claims that she did not request or consent to the tarsal strip procedure performed by Oestreicher. Nor was she informed of any alternatives to the tarsal strip.

[92] The evidence tendered in this proceeding suggests otherwise. First, from the very beginning of the discussions between Kram and Oestreicher in February 2009, it was clear that Oestreicher was proposing to perform a lid tightening procedure to correct the scleral show and sag in Kram’s lower eyelids. This is reflected in numerous emails as well as in the May 4, 2009 letter sent to Kram outlining the surgery to be performed. A handwritten note sent by Kram on May 26, 2009 along with final payment for the surgery stated that “here is the final payment for my upper bleph and lateral tightening…” Thus there was no confusion or misunderstanding with respect to the fact that Oestreicher was proposing to perform a lower lid tightening on June 15, 2009.

[93] I further find that at no time prior to the surgery did Kram request Oestreicher to undertake a “canthopexy” as opposed to a tarsal strip procedure. Kram herself was somewhat equivocal on this issue in her testimony; at times she claimed that she specifically requested the use of the canthopexy, whereas at other times she indicated only that she assumed Oestreicher was proposing to use the canthopexy technique. I do not find either of these claims to be credible. There is simply no evidence on the record that prior to June 15, 2009 Kram was even aware of the distinction between a canthopexy and a tarsal strip. The voluminous email correspondence between the parties contains no reference to any such technical terms. Oestreicher testified clearly and credibly that he did not discuss the specific manner in which he proposed to carry out the lid tightening prior to the June 15, 2009 surgery. In fact, the first reference to the term “tarsal strip” was in an email sent by Oestreicher approximately one week after the surgery had been completed.

[94] I therefore reject Kram’s evidence that she had requested a canthopexy as opposed to the use of the tarsal strip in order to tighten her lower eyelids. I further reject her claim that Oestreicher performed the “wrong surgery” on June 15, 2009.

[95] Of course, these conclusions do not end the informed consent inquiry. The legal test for informed consent is whether, on a balance of probabilities, a reasonable person in the position of the plaintiff would have consented to the proposed treatment if the attendant risks and alternatives had been disclosed.

[96] The courts have developed a two-step analysis for determining whether the legal requirements for informed consent are satisfied. It must first be determined whether there was adequate disclosure of the nature of the treatment, its risks, and alternatives. Secondly it must be asked whether any lack of disclosure caused damage to the patient, which involves a consideration of whether the reasonable patient, in the circumstances of the plaintiff, would have consented to the procedure if disclosure had properly been made.[^12]

[97] A physician does not have a duty to disclose all possible alternatives but only those that are medically reasonable. Where a physician reasonably concludes that a particular procedure is clinically not an option for the patient, or that an alternative is not likely to achieve a beneficial result, the physician does not have a duty to provide that option.[^13] Similarly, a physician need not go into every conceivable detail about the proposed operation, so long as she describes its nature, subject to any specific questions that the patient may have.

[98] Kram testified that there was no discussion of the specific risks associated with the tarsal strip procedure prior to surgery on June 15, 2009. In contrast, Oestreicher’s progress notes stated that he discussed the risks, alternatives, and benefits of the various procedures with Kram when he met with her prior to surgery on June 15, 2009. He further testified about his invariable practice for securing informed consent for the lateral tightening procedure, which he testified that he would have followed with Kram. This practice involves holding a mirror in front of the patient, holding their eyelid, and explaining the procedure in layman’s terms: detaching and reattaching the eyelid in a tighter configuration, along with a discussion of risks including dehiscence, bleeding, scarring, and tightness. Oestreicher testified that he had performed thousands of lower lid tightening procedures prior to 2009 in this manner.

[99] It is well established that the invariable practice of a professional can be given significant weight by the Court.[^14] I find no reason to question that Oestreicher followed his invariable practice in this case and that he provided a satisfactory explanation of the nature of the surgery as well as its attendant risks.

[100] The remaining issue is whether Oestreicher ought to have raised with Kram the alternative of a canthopexy as opposed to the use of the tarsal strip technique. Oestreicher testified that he did not describe the canthopexy technique to Kram because he did not view this as a medically reasonable alternative for her cosmetic issue. Kram presented with vertical vector scarring and, in his view, she required more effective lifting than the canthopexy technique could provide. In his view, the canthopexy would not provide a lasting or satisfactory solution to her concerns.

[101] Dr. Harvey was clear in his evidence that the standard of practice in Ontario in 2009 was to describe the nature of the operation just as Oestreicher did, namely as a lower eyelid tightening. In his view, based on Kram’s medical history of a prior blepharoplasty, with associated vertical scarring, the canthopexy technique was not an appropriate surgical approach in Kram’s case. He testified that, when securing a patient’s informed consent for the surgery contemplated on June 15, 2009, the patient should be made aware that he or she will be undergoing an elective surgery intended to tighten and elevate the corner of the eyes, along with a discussion of the risks and benefits. The specific techniques the surgeon will employ during surgery are matters of clinical judgment and generally need not be discussed with the patient, absent specific patient concerns or questions. I have already found that no such questions regarding surgical techniques were raised by Kram prior to surgery.

[102] The law of informed consent only requires the disclosure of medically reasonable alternatives. I therefore find that Oestreicher was not required to discuss the alternative of a canthopexy and that his failure to do so did not vitiate Kram’s consent.

[103] Nevertheless, even if I were to conclude that Oestreicher ought to have disclosed the alternative of a canthopexy, the further issue that arises is whether, if Oestreicher had made the required disclosure, Kram would have refused to undergo the procedure. The standard to be met is a modified objective one: whether a reasonable person in Kram’s position would have consented to the June 15, 2009 surgery had Oestreicher made the required disclosure.

[104] Kram claims that had she been provided with the alternative of a canthopexy prior to June 15, 2009, she would have elected to proceed with this procedure as opposed to the tarsal strip. However, the totality of the record provides scant support for this claim. In the months leading up to the June 15, 2009 surgery, Kram evinced a strong motivation to proceed with the surgery as soon as possible. She paid for the surgery well in advance and did not raise any questions about the manner in which the lower lid tightening was to be accomplished. The focus of her emails during this period was on suggestions she had about additional surgeries that she wanted Oestreicher to perform either then or in the future.

[105] There is simply no basis for me to conclude, on a balance of probabilities, that Kram would have disregarded Oestreicher’s medically reasonable advice and declined to proceed with the proposed surgery, or have elected the canthopexy had this alternative been presented to her. As Dr. Harvey testified, the canthopexy and a tarsal strip were both similar operations involving a tightening of the lower eyelid. While the evidence discloses many advantages of the tarsal strip, the evidence does not identify any advantages of the canthopexy. I find that it is more likely than not that Kram would have followed Oestreicher’s recommendation and proceeded with the tarsal strip rather than the canthopexy, even if the latter alternative had been proposed to her.

[106] The remaining question on the issue of informed consent for the June 15, 2009 surgery relates to Kram’s claims that the informed consent form that she acknowledges signing was somehow tampered with or altered by Oestreicher. Kram testified that the consent form she signed on this date listed only “Upper lid blepharoplasty” as the procedure to be performed. She further testified that there were two blank lines above this procedure name, suggesting that the additional procedures to be performed were added later. She further claimed that the third page of the consent form found in Oestreicher’s records was not the page she signed; rather, the third page that she signed was the Governing Law and Jurisdiction Agreement, which also bears her signature.

[107] Some concerns did emerge regarding the manner in which Oestreicher had handled Kram’s informed consent forms. During his examination in chief, Oestreicher admitted to having signed the witness lines on certain of these forms after litigation had been initiated and prior to delivering his records to his lawyers. He regretted the mistake, took responsibility for it, and apologized to both the Court and Kram. However, he categorically denied making any changes to procedure names or to Kram’s signature on any of the forms.

[108] It is clear that Oestreicher’s action in signing the witness lines on certain of the informed consent forms after litigation had been commenced is a serious error, and that this provides some support for Kram’s concerns that the forms might well have been altered in some other manner. At the same time, Oestreicher candidly acknowledged his error and apologized for it. Moreover, the originals of all of the informed consent forms were available during the trial and could have been reviewed in an attempt to ascertain whether Kram’s concerns could be substantiated. Despite being invited to, Kram declined to investigate or discuss the matter further.

[109] Moreover, her evidence regarding the informed consent forms was confusing and difficult to follow. There was no doubt that Kram understood and agreed that Oestreicher was to undertake a lid tightening procedure on June 15, 2009. Thus her claim that there was no reference to this procedure on the original form that she signed and it was later “added in” by Oestreicher sometime after the fact is inconsistent with the record and is simply not credible.

[110] I therefore find that the informed consent forms tendered in evidence were in fact the forms signed by Kram at the time of the surgery on June 15, 2009.

b. Informed Consent for April 19, 2010 Surgery

[111] Kram claimed that she did not consent to the tenzil flap variant surgery performed by Oestreicher on April 19, 2010. In support of this claim, she pointed to her emails on March 24, 2010 and April 1, 2010 indicating that she did not want the tenzil flap that had been proposed by Oestreicher.

[112] It is true that Kram was initially resistant to Oestreicher’s proposal for the tenzil flap. However, in my view, the record clearly confirms that Kram subsequently consented to the tenzil flap procedure. It is agreed that the parties had a telephone discussion regarding the upcoming surgery on April 12, 2010. It is evident from subsequent emails, particularly Oestreicher’s email of April 13, 2010 and Kram’s reply on April 16, 2010, that an agreement had been reached during this call as to what surgery Oestreicher was intending to perform. While these later emails do not make express reference to the tenzil flap, Oestreicher’s evidence was that Kram had in fact agreed with his proposal during the April 12, 2010 telephone call. Kram’s statement in her April 16, 2010 email that she is “looking forward to having surgery” without any reference to her previous concerns regarding the tenzil flap, supports Oestreicher’s account.

[113] Oestreicher’s progress notes from April 19, 2010 document a discussion with Kram that took place prior to surgery. In these notes Oestreicher diagrammed the proposed surgery, namely, the variant of tenzil flap with hard left palate graft he had been suggesting. His diagram also shows another possible procedure to deal with a problem on Kram’s left upper eyelid; however the notes indicate that Kram did not agree to this procedure and therefore Oestreicher would not proceed with it. Clearly Oestreicher was fully prepared to not proceed with any surgery to which Kram did not consent. This conclusion is further supported by Oestreicher’s earlier March 26, 2010 email to Kram, in which he states that he cannot proceed with any surgery unless “you and I agree that that is an acceptable strategy.”

[114] I further note that three days after the surgery was performed, Kram emailed Oestreicher indicating that she was unhappy with “this tenzil that you have given me” and that she would like it reversed immediately. Significantly, however, she does not suggest that she had not consented to Oestreicher performing the tenzil flap, merely that she was not happy with the result. Nor does she raise any such suggestion or objection in her subsequent emails to Oestreicher over the next few weeks.

[115] Kram also raised some concerns with respect to the informed consent form for the April 19, 2010 surgery tendered in evidence. However, her claims in this regard were inconsistent and difficult to follow. She initially claimed that she had not signed the April 19, 2010 form at all. She subsequently altered her position and claimed that, while she did sign a “similar form”, the signature on the document before the Court was a photocopy and not authentic.

[116] As discussed earlier, the originals of the informed consent forms relied on by Oestreicher were available for review during the trial. Kram’s allegations regarding her signature having been “photocopied” onto the consent form could have been verified (or disproven) through an examination of the original of the document. Kram declined to take advantage of this opportunity. I find that her allegations with respect to the alleged tampering with the April 19, 2010 consent forms to be lacking in credibility and without merit.

[117] Thus, in my view, the record overwhelmingly supports the conclusion that Kram consented to the surgery performed by Oestreicher on April 19, 2010, and that evidence of this consent was recorded on the consent form she signed that day. Assuming this to be the case, it is also evident that Oestreicher fully informed her as to the nature of the surgery as well as to the risks, alternatives, and benefits. This is documented in the diagrams that he provided her showing in great detail the nature of the surgery to be performed, as well as the telephone discussions the parties had on March 17 and April 12, 2010.

[118] I therefore find that Oestreicher obtained Kram’s informed consent prior to the surgery on April 19, 2010.

[119] For completeness, having heard from the parties and reviewed the documentary record, I further find that Kram provided informed consent to the other surgeries performed by Oestreicher in August 2009 and August 2010.

Are Kram’s Claims Statute Barred?

[120] Section 4 of the Limitations Act[^15] provides that a proceeding shall not be commenced in respect of a claim “after the second anniversary of the day on which the claim was discovered.” Section 5 of the Act provides that a claim is “discovered” on the earlier of the date when the plaintiff either knew, or ought to have known, of the elements of her claim.

[121] Kram’s claim was commenced on April 17, 2012. Oestreicher argues that she would have been aware of any claims she might have had with respect to the June 15, 2009 surgery by no later than July 31, 2009. He points to the July 24, 2009 discussion between the parties in which Kram expressed her desire to reverse the lateral tarsal strip technique. Kram expressed a similar desire in a July 29, 2009 email as well as in a July 31, 2009 conversation with Oestreicher. Oestreicher argues that because Kram did not commence this proceeding by July 31, 2011, any claim she may have with respect to the June 15, 2009 surgery is beyond the time permitted by the Act.

[122] The discoverability rule in section 5 requires a determination of the date on which a claimant knows, or ought to know, when the launching of a civil claim is an “appropriate means” to recover a loss. Recent decisions of the Court of Appeal have made it clear that the “appropriate means” language in section 5(1)(a)(iv) permits plaintiffs, in certain circumstances, to commence claims more than two years after they discover the loss, particularly where they are relying on a defendant with superior knowledge and expertise who was engaged in good faith efforts to remedy the loss.

[123] The recent Court of Appeal decision in Presidential MSH Corporation v. Marr Foster & Co.[^16] interpreted the “appropriate means” language in section 5 in the following terms:

Resort to legal action may be “inappropriate” in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship. Conversely, the mere existence of such a relationship may not be enough to render legal proceedings inappropriate, particularly where the defendant, to the knowledge of the Plaintiff, is not engaged in good faith efforts to right the wrong caused. The Defendant’s ameliorative efforts and the plaintiff’s reasonable reliance on such efforts to remedy its loss are what may render the proceeding premature.

[124] This reasoning had been applied by the Court of Appeal in an earlier case, Brown v. Baum,[^17] where the plaintiff had suffered severe complications from a breast reduction surgery performed by the defendant doctor. The defendant had performed a series of subsequent surgeries in an attempt to improve the outcome of the initial surgery. Feldman J.A., on behalf of the Court of Appeal, held that it would not have been appropriate for the patient to sue the defendant doctor while he was trying to fix the complications that arose in the original surgery because “he might have been successful in correcting the complications and improving the outcome of the original surgery.” Feldman J.A. further emphasized that it was not simply the existence of an ongoing treatment relationship that would prevent the discovery of the claim under section 5. Rather it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery. This could have avoided the need to sue, which reflects the Legislature’s desire to avoid needless litigation by including the “appropriateness” criterion in section 5 of the Act.

[125] In my view, the circumstances here are analogous to those before the Court of Appeal in both Presidential MSH Corporation and Brown v. Baum. Assuming that I had concluded that Oestreicher was civilly liable for the manner in which the June 15, 2009 surgery was carried out, he was engaged in good faith efforts to remedy any damage caused for at least the next 14 months. This was reflected in the three subsequent surgeries he performed, the last of which occurred on August 17, 2010. Moreover, it is clear that Kram was relying on Oestreicher’s superior knowledge and expertise throughout this time period.

[126] In my view, it would have been premature, and therefore inappropriate, for Kram to have commenced a legal action while Oestreicher’s good-faith efforts to remedy any negative effects from the June 15, 2009 surgery were ongoing. I conclude that the two-year limitation period in respect of her claims began to run, at the earliest, on August 17, 2010. She commenced this proceeding within two years of that date. Accordingly, Kram’s claims are not barred by the operation of the Act.

Claims For Exposure Keratitis And/Or Crossed Eyes

[127] In November 2017 Kram amended her Statement of Claim to raise new allegations against Oestreicher in respect of two additional medical issues. She indicates that in late 2016 she was having difficulty focusing and seeing. She noticed a foreign body sensation to her left eye that was increasing in frequency and strength resulting in discomfort. She has experienced increased redness and dryness to both eyes causing increasing discomfort. In August 2017 she was diagnosed with having “exposure keratitis” from inability to close her eyes properly. She was also informed that she appears cross-eyed. Upon attending an eye examination, she was informed that the visual acuity in both of her eyes has declined and she was given a glasses prescription with prism lenses for alignment of her eyes.

[128] She has offered no expert evidence to suggest that either the exposure keratitis or the crossed eyes (esotropia) were caused by the surgeries performed by Oestreicher in 2009 or 2010. The only evidence on the issue of any potential causal link between the Oestreicher surgeries and these conditions experienced by Kram was provided by the defence expert, Dr. Harvey.

[129] Dr. Harvey testified that there is likely no causal link between the surgeries performed by Oestreicher and Kram’s exposure keratitis. In Dr. Harvey’s experience, patients who have exposure keratopathy after surgery usually notice it right away and complain of irritated eyes within a few days. In this case, Kram’s claim states that she only began to notice a foreign sensation in her eyes in late 2016, over six years after Oestreicher performed the last of the surgeries. Dr. Harvey also pointed out that in the interval between the surgeries performed by Oestreicher and the eye irritation experienced by Kram, she had undergone several other operations. He further noted that Kram may simply have dry eyes, which is common in middle-aged women. In his view, there was likely no connection between Oestreicher’s care and Kram’s exposure keratitis.

[130] On cross-examination, Dr. Harvey was taken to a note prepared by Dr. Mani from June 18, 2010 in which Dr. Mani appeared to have diagnosed Kram with exposure keratitis at that time. Dr. Harvey reasonably conceded that this June 2010 diagnosis made it temporally possible for the condition to be related to surgery by Oestreicher. However he also noted that Dr. Mani did not determine that the exposure keratitis was related to the Oestreicher surgery and, in fact, his record indicates that he advised Kram that the discomfort she was experiencing was related to either allergies, irritation caused by friction from her eyelids, or dryness. Dr. Harvey also pointed out that Dr. Mani characterized exposure keratitis as “0.5”, meaning very mild.

[131] With respect to the cross-eye condition, Dr. Harvey opined that none of the surgeries performed by Oestreicher affected the muscles that move the eyes around. In his view, this significantly minimizes the chances of Kram having developed esotropia as a result of the surgery. Dr. Harvey also found it significant that Kram did not experience diplopia (double vision) which, in his experience, indicates that Kram has likely had esotropia for a very long time. Dr. Harvey noted that if the Oestreicher surgery had caused the esotropia, Kram would have noticed double vision within a few days of surgery. Overall, in his opinion, there is no basis to believe that the Oestreicher surgeries caused the cross-eye condition.

[132] As the evidence from Dr. Harvey is the only expert opinion before the Court on the claims relating to keratitis and crossed eyes, Kram has failed to establish that it is more likely than not that these conditions were caused by Oestreicher’s surgery.

Damages

[133] Regardless of my findings on liability, I am required to assess damages.

[134] Kram advances the following damages claims:

i. $650,000 in general damages for pain and suffering and permanent disfigurement;

ii. lost wages in the amount of $153,206;

iii. special damages of $47,728.61 USD plus $26,097.42 CDN, representing her costs incurred in connection with her surgeries with Oestreicher, as well as her costs incurred in connection with her subsequent consultations and surgeries in the United States, including professional fees, travel costs, medications, etc.;

iv. other special damages, including the cost of eyedrops in the past ($2008), future eye drop costs for the next 29 years ($15,080), pharmacy costs ($345.75) and travel time ($4196);

v. $100,000 for future cosmetic surgery in the United States;

vi. $400,000 for breach of contract; and

vii. $300,000 in punitive and exemplary damages.

a. General Damages

[135] As noted above, Kram is seeking $650,000 in general damages.

[136] The defendant referred me to general damages awards in cases involving blepharoplastys and other similar cosmetic procedures, suggesting that the appropriate range of general damages in such cases is between $11,500-$30,000.[^18] I note the evidence of Dr. Harvey to the effect that photographs taken in 2012 indicate that the results of the Oestreicher surgeries was “satisfactory”. In my view, any general damages are most analogous to the circumstances in Mok, where general damages were assed at approximately $12,500 in 2018 dollars. I therefore assess general damages at $12,500.

b. Claim for Lost Wages

[137] Kram’s claim for $153,206 in lost wages stems from the time needed to undergo surgery as well as the negative emotional impact surgery has had on her ability to concentrate and to work. Kram calculated her loss of income based on her average annual hours worked for the years 2001 to 2006, which she claimed to be 976 hours annually. She compared that benchmark number with her actual hours worked for the years 2010 to 2017, and claimed the difference as an income loss resulting from her surgeries with Oestreicher. She further projected work shortfalls for 2018 and 2019.

[138] I note, however, that in 2008, the year before she came under Dr. Oestreicher’s care, Kram worked a total of just 182 hours and 4 educational hours. The reason for the reduction was that she went from part-time status to casual status to accommodate a holiday. In 2007, Kram only worked a total of 473 hours plus 23 educational hours, again far below the benchmark of 976 hours worked between 2001 and 2006. In fact, Kram worked more in the years that followed her surgeries with Oestreicher than she had in 2007 and 2008, including in 2013 and 2014 when she underwent surgeries with Dr. Levine in California. In none of the years from 2010 to 2017 did she work as few hours as she had in 2007 and 2008.

[139] I find that Kram has not demonstrated a correlation between her surgeries with Oestreicher and a reduction in her annual hours worked. In my view it is speculative to suggest that her hours worked between 2010 and 2017 were materially impacted by her surgeries with Oestreicher. Her practice was generally to fly to Toronto and return to Calgary within 24 hours of surgery, which would have minimized any absences from work. In my view, Kram has failed to demonstrate on a balance of probabilities that she lost income as a result of Oestreicher’s conduct.

c. Special Damages

[140] On the premise that Oestreicher performed the “wrong surgery” on June 15, 2009, Kram is entitled to recover her costs incurred in connection with that surgery as well as with the three subsequent surgeries undertaken by Oestreicher to “correct” the results of the initial surgery. These costs amount to $9102.49, consisting of the fee charged by Oestreicher for the June 15, 2009 surgery, as well as her airfares, ground transportation, and hotel costs associated with the travel between Calgary and Toronto for her various surgeries with Oestreicher.

[141] I would not compensate Kram for the numerous consultations and surgeries that she has sought or obtained in the United States between 2010 and 2017. The consultations and/or surgeries that Kram sought out in the United States were elective, cosmetic surgeries that she chose to pursue. There is no evidence to suggest that the various surgeries the Kram has sought or obtained were necessary as a result of her surgeries with Oestreicher. I find that her frequent travel to the United States to obtain cosmetic surgery is a personal choice and preference of Kram. In fact, she was seeing surgeons in the United States long before she ever saw Oestreicher. I find that these expenses are not reasonably related to care provided by Oestreicher.

d. Other Special Damages Claims

[142] Kram has claimed substantial amounts for eye drops, including $2008 for the cost of eye drops incurred between 2010 and 2018, as well as $15,080 for eye drops for the next 29 years. No receipts or other records of these expenditures was provided. Moreover, her pleadings disclose that she did not begin experiencing discomfort in her eyes until late 2016 and she was not diagnosed with exposure keratitis until August 2017. I would assess her claim for past eye drop costs at $250 and future eye drop costs at $2500. Her claim for $345.75 in “pharmacy costs” incurred between 2009 and 2014 is not documented and is therefore impossible to assess. I would disallow this aspect of her claim. Finally, I see no basis for compensating her for her “travel time” to undertake surgery since her decision to undertake surgeries with physicians located thousands of kilometres away from Calgary was a personal choice and not recoverable in the form of a special damages claim.

e. Cost For Future Surgeries

[143] For the reasons discussed above, I would not award any compensation for the cost of future surgeries to be undertaken in the United States.

f. Claim for Breach of Contract

[144] There is no basis for an award for breach of contract. A plaintiff cannot recover in both tort and contract for the same damage, as that would amount to double recovery. Assuming Kram’s claim were based in contract rather than in tort, where a physician exercises a reasonable degree of skill and care, the physician will not be liable for breach of contract for the result of the treatment. In the context of cosmetic surgery, one of the narrow exceptions to this general rule is where a surgeon makes a promise to achieve a specified result with the surgery. Only in this circumstance could a surgeon be held liable for a breach of contract.[^19] Here, no such guarantee was made and thus any contract claim must fail.

g. Claim for Punitive Damages

[145] I see no basis for any award of punitive or exemplary damages. Oestreicher made good faith and reasonable efforts to meet Kram’s needs throughout, including performing three additional surgeries at no charge in an effort to respond to her concerns expressed following the June 15, 2009 surgery. He also responded diligently and in a timely manner, over many months, to the hundreds of emails he received from Kram, and spoke with her on the telephone on numerous occasions in an attempt to address her concerns. Having reviewed the extensive record and heard from the parties, in my opinion Oestreicher acted at all times as a conscientious, competent and concerned physician attempting to achieve the results sought by Kram until he finally decided in December 2010 that he could not assist her further.

[146] In order to attract an award of punitive damages, a defendant physician’s conduct must rise to the level of egregious.[^20] There is no evidence to support a claim for punitive or exemplary damages in this case.

[147] In summary, I would assess damages as follows:

a. $12,500 in general damages; and

b. $11,852.49 in special damages.

Conclusion

[148] For the reasons indicated, the Plaintiff’s claim against the defendant is dismissed with costs. I invite the parties to attempt to settle amongst themselves the quantum of costs payable. In the event that they are unable to so agree, the defendant may make costs submissions of up to 3 pages (excluding Bills of Costs or offers to settle) within 21 days, with the plaintiff’s cost submissions on a similar basis due within 21 days of that date.

P. J. Monahan J.

Released: June 20, 2018

COURT FILE NO.: CV-12-00451386

DATE: 20180620

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NANCY KRAM

Plaintiff

– and –

JAMES OESTREICHER

Defendant

REASONS FOR JUDGMENT

P. J. Monahan J.

Released: June 20, 2018

[^1]: Oestreicher testified that his preference would have been for Kram to have attended for her physical examination at least one day prior to the actual surgery. However, because Kram was concerned about minimizing her travel costs, it was agreed that she would have her physical examination and surgery on the same day.

[^2]: Kram only paid for the June 15, 2009 surgery. The other surgeries were performed by Oestreicher without charge.

[^3]: ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at paragraph 51.

[^4]: Brassard v. Germain, [1993] 65 O.A.C. 311 (C. A.) at paragraph 7.

[^5]: R. v. Mohan, [1994] 2 S.C.R. 9 at page 25 ("Mohan").

[^6]: 2009 ONCA 624 ("Abbey").

[^7]: Mohan, at pages 20 to 25.

[^8]: Abbey at paragraph 76.

[^9]: See, for example, Tiglao v. Sleightholm, 2012 ONSC 3092; Sima v. Hui, 2008 ABQB 104.

[^10]: Oestreicher testified that his role as a Preceptor involves teaching oculoplastic surgery fellows of the ASOPRS in Ontario.

[^11]: Nichols v. Young, [2002] O.T.C. 99 (S.C.J.) ("Nichols) at paragraph 63; affirmed [2003] O.J. No. 4376 (C.A.).

[^12]: See generally Reibl v. Hughes, [1980] 2 S.C.R. 880; Nichols, at paragraph 62 to 63; Bafaro v. Dowd, [2008] O.J. No. 3474 (SCJ) at paragraph 40 ("Bafaro"), affirmed 2010 ONCA 188 (C.A.).

[^13]: Bafaro, at paragraph 41.

[^14]: Bafaro, at paragraph 29.

[^15]: Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[^16]: 2017 ONCA 325 at paragraph 26. See also 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 at paragraphs 44 to 48.

[^17]: 2016 ONCA 325.

[^18]: See, for example, Keter v. Kasdan, [1994] O.J. No. 1690 (Gen. Div.) ($7500 awarded [$11,412 in $2018]); Mok v. Wong, (1996) 6 O.T.C. 10 (Gen.Div.) ($8500 assessed [$12,468 in $2018]) (“Mok”); Maida v. Diwan, (1997) 43 O.T.C. 56 (Gen.Div.) ($10,000 assessed [$14,425 in $2018]); Dunn v. North York General Hospital, (1989) 48 C.C.L.T. 23 (Ont. H. C.) ($22,500 assessed [$29,225 in $2018]).

[^19]: Mok at paragraphs 55 to 57.

[^20]: Whiten v. Pilot Insurance Co., 2002 SCC 18 at paragraphs 87, 92.