COURT FILE NO.: CV-13-477759

DATE: 20191015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DR. BRENT JESPERSON and IRENA JESPERSON

Plaintiffs

– and –

DR. YAIR KARAS

Defendant

Neil Sacks and Ken Morris, for the Plaintiffs

William Black and Meghan Bridges, for the Defendant

HEARD: January 21, 22, 23, 24, 25, 28, 29, 30, 31 and February 1, 4, 5, 6, 7 and March 12, 2019

D. A. Wilson j.

Background

[1] Dr. Brent Jesperson (“Dr. Jesperson”) was nearsighted, and as a result, he had to wear thick glasses to correct his vision. With glasses, he had 20/20 vision. He had dry eyes and found that wearing contact lenses was difficult and his eyes became red. He had to wear glasses to do his work as a dentist, but he wanted to abandon the use of glasses for participation in a variety of sports. From one of his friends, he learned that there was surgery available to correct myopia, or nearsightedness, and he made an appointment with the Defendant in 1994.

[2] Dr. Yair Karas (“Dr. Karas”) practised as an ophthalmologist in in Richmond Hill from 1975 until 2016 when he retired. He commenced doing refractive surgery in 1984 and at the time of the events giving rise to this claim, he had performed approximately 5000-6000 RK surgeries. He stopped doing RK in 2001 when laser eye surgeries were achieving better results. At the time of trial, he was 78 years of age.

[3] After speaking with Dr. Karas, an ophthalmologist with a great deal of experience in refractive surgery, Dr. Jesperson decided to proceed with the eye surgery. On October 13 and 14, 1994, the Defendant performed a radial keratotomy (“RK”) on both of the Plaintiff’s eyes. This involved making 8 incisions with a diamond blade instrument in each eye. Following the RK, Dr. Jesperson was prescribed steroid drops which he used for 2-3 months.

[4] The Plaintiff was pleased with the results, as his vision was improved. However, he still required glasses for sports so he returned approximately a year later to see Dr. Karas. On October 13 and November 24, 1995, Dr. Karas performed additional RK surgeries referred to as the “enhancement procedures” on both of the Plaintiff’s eyes. This was basically a repetition of the RK surgeries done the year before, with an additional 8 incisions in each eye. Following the enhancement surgeries, Dr. Jesperson experienced much better vision and was able to participate in sports without glasses; his vision was 20/20. He used the steroid drops for several months after the surgery.

[5] Over the next few years, Dr. Jesperson stated that he noticed a slow, gradual change in the vision in his left eye. It was blurry, he felt the two eyes were not balanced and at times, he had difficulty seeing at work. Consequently, the Plaintiff made an appointment to see Dr. Karas. The timing of this appointment is not clear, as Dr. Karas does not have his notes; he thought it might have been in 1998.

[6] Dr. Karas diagnosed residual astigmatism from the RK procedures. Essentially, Dr. Jesperson’s eye was shaped like a football instead of like a soccer ball. The procedure to correct the astigmatism is called astigmatic keratectomy (“AK”) and it involves making more incisions at right angles to the original incisions from the RK. This changes the shape of the cornea so that it is round. In April 1999 Dr. Karas performed an AK on the Plaintiff’s left eye, following which there was some improvement in his vision. He was able to engage in sports without glasses.

[7] With the passage of time, Dr. Jesperson noted that his glasses were not giving him acceptable vision and in 2001 his optometrist told him he had a cataract in his left eye. He returned to see Dr. Karas, who confirmed this diagnosis. On July 5, 2001, Dr. Karas performed cataract surgery involving the placement of an artificial lens in Dr. Jesperson’s left eye. Following this procedure, the Plaintiff noted cloudiness in his vision. As a result, on October 6, November 10, 2001, and January 19, 2002, Dr. Karas did a YAG laser capsulotomy on Dr. Jesperson’s left eye. The Plaintiff’s vision was better afterwards.

[8] However, the Plaintiff testified that he noticed a gradual deterioration in his vision over time. Sometime in 2007 or 2008, a bug flew into the Plaintiff’s eye, causing an irritation and redness. The significance of this incident was hotly contested at trial. On November 14, 2008, he returned to see Dr. Karas with complaints of blurriness of vision in his left eye, glare and some difficulty with depth perception. The Defendant told him he had scarring on his cornea and there were blood vessels growing in the area of the scar. He said there was an astigmatism which could not be corrected by glasses and he referred the Plaintiff to Dr. Slomovic, an ophthalmologist who specializes in corneal issues.

[9] Dr. Jesperson saw Dr. Slomovic in March 2009 and by that time, his vision had continued to deteriorate to the point where he was having difficulty at work. Dr. Slomovic examined him and said there was little that could be done to improve his vision. He recommended using rigid contact lenses. Dr. Jesperson tried several contact lenses without much success, so he saw Dr. Slomovic, who advised he would try to remove some of the scar tissue from the cornea.

[10] On July 3, 2009, Dr. Slomovic performed a left keratectomy on the Plaintiff, which was a removal of the scar tissue. There was little change in his vision after this procedure. On July 23, 2009, Dr. Jesperson saw Dr. Karas for the last time.

[11] Since that time, the Plaintiff has sought advice and treatment from a myriad of ophthalmologists and optometrists with limited success. He was fitted with a scleral lens which he wears over his left eye but he can only wear it for short periods of time because his eye becomes red and irritated.

[12] Dr. Jesperson asserts his vision problems arising from the various surgeries prevent him from working as a dentist. He stopped working on July 2, 2009 and sold his portion of the practice to his partner in 2011. He has not been employed in any capacity since July 2, 2009. He received long term disability benefits as well as benefits pursuant to retirement protection policy; he settled all his claims with the disability insurer in December 2016.

[13] He brings this claim in negligence against Dr. Karas alleging there was no informed consent to the surgeries in 1994 and 1995 and furthermore, he asserts the various surgeries were performed negligently, and there was a breach of the standard of care. As a result, he claims he has been left with fluctuating, blurry vision, glare and problems with depth perception, all of which prevent him from working as a dentist. He is currently 57 years of age.

[14] The claims of Irena Jesperson (“Irena”), the wife of Brent, are asserted pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) for loss of care, guidance and companionship as well as a loss of income claim.

[15] Dr. Karas denies any negligence and pleads that an informed consent was obtained and the surgeries were done properly, without negligence. Furthermore, the vision problems about which the Plaintiff complains are the result of trauma to the eye from the bug incident, not the surgeries. The Plaintiffs have not mitigated their damages and Dr. Jesperson is capable of working in some capacity and has been since he stopped working in July 2009. Finally, the Plaintiff received significant sums of disability benefits, which ought to be deducted to avoid double recovery.

Issues to Be Determined

[16] Counsel agree there are nine issues for my determination:

(1) Was Dr. Jesperson a proper candidate for RK in 1994?

(2) Was there appropriate informed consent? If not, would Dr. Jesperson have proceeded with the RK if he had received adequate disclosure?

(3) Whether or not RK should have been performed, did the RK surgeries by Dr. Karas on both of Dr. Jesperson’s eyes meet the standard of care in 1994 and 1995?

(4) Did Dr. Karas’ attempts to correct Dr. Jesperson’s astigmatism in 1999 with astigmatic keratectomy meet the standard of care?

(5) Did Dr. Karas’ approach to cataract surgery in 2001 meet the standard of care?

(6) What is the cause of Dr. Jesperson’s visual disability?

(7) What are the plaintiffs’ damages?

(8) Did the plaintiffs properly mitigate their damage?

(9) Should the funds Dr. Jesperson received from his long-term disability policies at RBC be deducted from the pecuniary damages in this case?

Definitions of Medical Terms

[17] Counsel provided me with a glossary of medical terms (exhibit 10), which was very helpful. The various experts also assisted with their explanations of certain terms and procedures. Refractive surgery is designed to reduce or eliminate the need for glasses. The cornea is the clear lens that covers the coloured iris and the pupil; it magnifies and focuses what is seen. It is avascular, meaning it has no blood vessels. The sclera is the white part of the eye, which is vascularized, meaning it has blood vessels. Myopia is the term for the condition of nearsightedness, in which people can see things that are close but not those that are far away. An astigmatism means that two surfaces of the eye do not have the same curvature. A regular astigmatism can be corrected with lenses, but an irregular astigmatism is a diffusely rough corneal surface that cannot be fixed with glasses.

[18] Radial Keratotomy (“RK”) is eye surgery in which radial incisions are made in the cornea around a clear central zone; it changes the shape of the cornea to a flatter curvature which corrects nearsightedness. RK involves incisions being made in the cornea which changes the shape of the cornea and results in a flattening of the centre of the cornea which reduces myopia. The incisions go out from the centre of the eye but there is a space where there are no incisions, which is known as the clear zone. RK surgery begins by using an instrument that makes an indentation on the cornea to indicate where the incisions should be made. The incisions are made with a diamond blade, and they run from the centre of the eye like the spokes of a bicycle wheel.

[19] The clear zone is the area of the cornea that does not have any incisions; it is also referred to as the optical zone.

[20] An astigmatic keratotomy (“AK”) is a corneal incision technique for reducing the grade of the astigmatism by changing the cornea from a football shape to a more rounded one. AK incisions are made at right angles to RK incisions.

[21] A keratectomy is the surgical excision of a part of the cornea. Photorefractive Keratectomy (“PRK”) involves removing the surface of the cornea with a laser and reshaping it. PRK was introduced in the early 1990s in Canada as a method of treating high myopia.

Historical Context

[22] Experts in refractive surgery gave evidence at the trial and provided historical context for the surgeries at issue in this lawsuit. Radial keratotomy or RK was developed in Russia in the late 1970s as a means of treating near-sightedness. It was introduced to North America in the 1980’s. By the late 1980’s RK surgery was being done regularly in North America. Dr. Karas started performing RK in approximately 1986. By the mid to late 1980s, RK was the most common type of refractive surgery being done in Canada and in the United States.

[23] In the early 1980s in the United States, there was a study conducted by Dr. George Waring, the Prospective Evaluation of Radial Keratotomy, which is commonly referred to as the “PERK” study. This was a multi-centre trial designed to determine the outcome of RK for simple myopia. This really was the first study that looked at the safety and usefulness of RK and it was published in the Journal of Ophthalmology in 1985, with further results published in 1987, 1990 and 1994. The 1990 results were entered as exhibit 31 at the trial.

[24] The Excimer laser was developed and introduced in the early 1990s and it was used to perform photorefractive keratotomy or PRK. By the early 1990s in Canada, PRK was being offered as an option to patients to treat myopia. By the mid-1990s there was a debate among ophthalmologists as to whether RK should be abandoned in favour of PRK.

[25] LASIK or Laser in Situ Keratomileusis was introduced in Canada in 1996 and by that time, it is fair to say that RK was no longer the surgery of choice to treat myopia, although RK continued to be performed by certain surgeons.

The Experts at Trial

[26] The Plaintiffs called two expert witnesses on liability and causation, Dr. James Salz and Dr. Peter Agapitos. Dr. Salz graduated medical school in 1965 and practices in California as an ophthalmologist. He was one of the few surgeons doing RK in the 1980s when it was introduced, and he has published extensively on RK and laser surgery. He has lectured around the world on RK, and he taught surgeons how to do the procedure when it was popular in the years 1980–1995. He was the editor of the Journal of Refractive Surgery, which was the first journal devoted to the subject.

[27] Dr. Agapitos is currently the Chief of Ophthalmology at the Ottawa Hospital and he has been a practising ophthalmologist since 1989. His residency included 2 years of corneal surgery, including refractive surgery. He has performed RK surgeries, but he conceded his primary area of interest is laser surgery. He agreed he does not possess the same degree of expertise in RK as Dr. Salz does.

[28] Defence counsel submits that Dr. Agapitos was combative during his testimony and would not make proper concessions; I did not find that to be the case. I found Dr. Agapitos was knowledgeable in the field of refractive surgery, his opinions were well founded and his evidence was credible.

[29] The Plaintiffs also called Dr. Vishakha Thakrar as a participant expert. She has been the treating optometrist for Dr. Jesperson since 2013. She has an expertise in fitting contact lenses for patients who have corneal problems and irregular astigmatism. I found her to be very knowledgeable in the area, and straightforward when answering questions; she was an impressive witness.

[30] The defence called one expert, Dr. Simon Holland, who has worked as an ophthalmologist since 1989 in British Columbia; since 2001 he has been the Research Director and Surgeon at the Pacific Laser Eye Centre in Vancouver. Dr. Holland’s research focuses on PRK and corneas; his residency did not include any RK surgery. He has spoken around the world on laser eye surgery, particularly PRK. He did not perform RK in the 1980’s and agreed that Dr. Salz is a world recognized expert on RK. In his practice, Dr. Holland treats RK patients who have issues arising from their prior surgeries.

[31] Counsel for the Plaintiffs argues Dr. Holland was arrogant during his testimony; I did not find him to be so. He has no “hands on” experience in RK, which he admitted. However, he has dealt with many RK patients in his practice and has been tasked to try and ameliorate their vision problems. The fact that Dr. Holland himself has never performed RK does not mean he cannot offer opinion evidence to the Court on the issues in this litigation, but it is a factor to be considered when determining the proper weight to be accorded to his evidence.

[32] In my view, Dr. Salz was uniquely situated to offer opinion evidence on the standard of care for RK surgery in 1994 and 1995 as well as on the issue of consent because he was a “pioneer” in the area and was practising RK from the time it was introduced in North America. While defence counsel submitted that Dr. Salz was not a persuasive witness because he in making certain concessions he reversed some of his original opinions, I do not agree. He conceded things he ought to have conceded and agreed that he was in error on certain points. I do not accept that this renders his opinion unworthy of acceptance; rather, I find he fulfilled the role of a Rule 53 expert—he assisted the court with opinion evidence that was fair and objective, in my view.

[33] If mistakes were made or assumptions incorrect in an opinion set out in a report, an expert has an obligation to acknowledge this to the Court during testimony. Obviously, depending on the magnitude of the errors or mistaken assumptions, this may affect the reliability of the opinion rendered. I found Dr. Salz to be very knowledgeable, fair in his evidence and not an advocate. Because RK is a surgery that is no longer being done in Canada, having an expert who practiced in the field of ophthalmology at the time RK was introduced, did the surgery himself and continued to practice in the field after RK surgery fell out of favour was very helpful; he was able to offer a “hands on” perspective based on his own experience. His evidence was of great assistance to the Court.

Analysis

(1) Was Dr. Jesperson a proper candidate for RK in 1994?

[34] Dr. Jesperson was very near sighted, and thus, he is described as a high myope. His pre-surgery vision was -10 diopters in both eyes, with minimal astigmatism. He had worn thick glasses since he was a child; he had difficulty wearing contact lenses for more than a few hours because his eyes would become red and uncomfortable. For his work as a dentist, he wore glasses which corrected his vision to 20/20. Because Dr. Jesperson was active in sports, he wanted to get rid of his glasses when he was engaged in sporting activities.

[35] Dr. Karas does not have his office notes concerning his treatment of the Plaintiff from 1994 to November 14, 2008 and he does not have an independent recollection of the discussions he had with the Plaintiff at the initial visit. He testified based on his usual practice, which I accept.

[36] Dr. Karas agreed that he likely told the Plaintiff that he had a 95% chance of getting rid of his glasses with the RK surgery. He also likely said that RK surgery was done on myopics with vision of up to -6 diopters with very good results, but could be done on patients with up to -12 diopters, who were severe myopics.

[37] There was expert evidence at trial on the issue of whether with his degree of myopia, Dr. Jesperson was an appropriate candidate for RK surgery.

[38] Dr. Salz testified that for someone like Dr. Jesperson with a high degree of myopia, it was unlikely he would get rid of his glasses after RK. Due to his high level of myopia, it was beyond the range of achieving a complete correction. However, Dr. Salz conceded that there was a difference of opinion among ophthalmologists at the time as to the level of myopia that could be corrected with RK. There were articles in respected medical journals which advocated for the use of RK in high myopic patients. Exhibit 29, for example, is a study published in 1995 examining the benefits of RK ten years after the surgery and some of the patients who underwent RK had myopia of -10 or higher.

[39] Similarly, Dr. Agapitos agreed that in the early 1990s there were refractive surgeons advocating the use of RK for high myopes. Dr. Agapitos wrote a paper (which was entered as exhibit 50) in 1993 recommending RK for high myopes noting it was a relatively safe and efficacious procedure for patients up to -14. He agreed that a good result could be obtained from RK but it might have to involve a further surgery, known as an enhancement.

[40] Dr. Holland testified that in 1994, RK was a good option and it was reasonable for Dr. Karas to recommend RK, given Dr. Jesperson’s -10 myopia.

[41] The time when Dr. Jesperson sought treatment for his myopia was a time of transition in Canada in the field of refractive surgery. RK was being performed on high myopes like the Plaintiff with good results, albeit not by the majority of refractive surgeons. At the time he was consulted by the Plaintiff, Dr. Karas was performing RK surgeries regularly with good results. While by 1994 the RK surgeons were in the minority of refractive surgeons in the country, the evidence and the literature are clear that performing RK on high myopes was still an acceptable method of treating myopia and it was within the standard of care at that time to recommend the procedure to a patient wishing to get rid of glasses.

[42] Dr. Karas was very experienced in the field of refractive surgery at the time and had performed thousands of RKs. Dr. Salz agreed that in the mid-1990s, there were ophthalmologists who continued to perform RK with success. In these circumstances, I find that Dr. Jesperson was an appropriate candidate for elective RK surgery in 1994.

(2) Was there appropriate informed consent? If not, would Dr. Jesperson have proceeded with the RK if he had received adequate disclosure?

The Legal Principles

[43] A physician has a duty to disclose the material risks of a procedure to a patient and to present alternatives and the failure to do so is negligence: Reibl v. Hughes, [1980] 2 S.C.R. 880. Not every risk must be mentioned to a patient, but risks that are material must be disclosed. A material risk is one that a reasonable person in the position of the patient would want to know before deciding whether to undergo the proposed treatment: Van Dyke v. Grey Bruce Regional Health Centre, [2005] O.J. No. 2219 (C.A.).

[44] To succeed in a case where informed consent is in dispute the Plaintiff must prove the breach and further, that they would not have undergone the procedure had they been properly informed. In addition, the Plaintiff must prove that a reasonable person in the same circumstances would not have undergone the procedure had they been properly informed.

[45] As the Court explained in Reibl, at p. 899, “Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient’s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it.”

[46] If a patient makes inquiries or asks questions, the doctor must answer them, and if there are unusual risks associated with a certain operation, those must be disclosed and explained: Hopp v. Lepp, [1980] 2 SCR 192. In Videto v. Kennedy, 33 O.R. (2d) 497, the Ontario Court of Appeal stated that if a certain risk is only a possibility but it carries serious consequences such as paralysis or death, it is a material risk that requires disclosure. Further, “The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure.”

[47] The ambit of the duty of disclosure and whether there has been a breach must be decided based on the facts of each case. In determining whether there is informed consent, the Court will consider both expert evidence and other evidence that bears on the issue of the patient’s decision whether or not to undergo an operation. Evidence from the patient should be considered as to what was relevant to the decision-making process: Reibl at pp. 899–900.

[48] In this case, the refractive surgery was elective, not mandatory. Dr. Jesperson had very good vision when he wore glasses, but he had difficulty with contact lenses and he wished to dispense with the need for wearing heavy glasses when he participated in sports. In Gerald B. Robertson & Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Carswell, 2017), at p. 179, the authors note, “[i]t is generally accepted that the scope of disclosure is greater where the procedure is elective.” That is a fair statement of the law, and it accords with common sense.

[49] The analysis undertaken by Linden J. in White v. Turner, 31 O.R. (2d) 773 (H.C.) at paras. 48–50 is instructive: “The essential issue, then, is to determine what a reasonable patient in the position of the plaintiff would consider to be “material risks” or “special or unusual risks” about which he would want to receive information. Before deciding this matter, the Court will certainly expect to hear expert medical evidence on the question of what the risks inherent in a particular operation are, how serious these risks are, how frequently these risks may arise, and what information medical practitioners usually transmit to their patients in relation to these risks. But that is not all the court will have regard to; it will also give due consideration to the evidence of the patient and his family as to his general situation. The Court will be interested in the information he would want to know in the circumstances. The court will then assess what a reasonable patient would like to know in these circumstances. Weighing all of these factors, the Court will decide whether the information given to this patient in these circumstances was sufficient.”

[50] In my view, in determining whether there was informed consent in the instant case, the Court must examine what was discussed between Dr. Karas and Dr. Jesperson, taking into consideration the contents of the consent form that was signed and any discussions surrounding the consent form. While the ability of the patient to understand the risks of a certain procedure is a relevant consideration in determining if there was informed consent, Dr. Jesperson is very intelligent, with a medical background himself, so his ability to comprehend what was discussed is not in issue here.

What disclosure was provided?

[51] Dr. Jesperson had two appointments with Dr. Karas prior to undergoing the first surgery on October 13, 1994. At the initial appointment, the Plaintiff read a pamphlet in the waiting room which compared RK and laser keratectomy (exhibit 7). This pamphlet indicated that people who were more near sighted than the Plaintiff obtained corrected vision which enabled them to discard their glasses. It also noted that any side effects following the surgery were of very short duration.

[52] He read another article (exhibit 8) that stated better vision would be achieved in 20 minutes; he recalled the article said the results were permanent, complications rare and it was a cure for myopia. He watched a video in the waiting room (exhibit 9, transcript of video, exhibit 18) which said the most common complication of RK was an eye infection and there was a 95% success rate for getting rid of glasses. In the video, Dr. Karas said that the scar on the cornea that is created through the surgery “absolutely doesn’t change over the years.”

[53] According to the Plaintiff, during his initial meeting with Dr. Karas, he told him that he was a dentist and wore his glasses while working. He was interested in being able to participate in sports without heavy glasses., Dr. Jesperson recalled being told that the incisions would be made on his cornea to flatten it. Because of the degree of his myopia, Dr. Karas told the Plaintiff he might need a second procedure. In the worst-case scenario, he understood if he did not get rid of his glasses, they would be thinner. Dr. Karas assured him that the incisions would not result in worse vision. He said there were no long-term consequences and the results were permanent, he could “throw away his glasses for life.” He was shown a bookshelf in Dr. Karas’s office with many pairs of glasses from patients who had undergone RK successfully.

[54] Dr. Jesperson recalled a brief discussion about laser surgery. Dr. Karas told him that PRK was being performed but it was a newer procedure and the laser was like sanding the cornea and there might be damage to the cornea that could not be reversed. He told the Plaintiff that with RK, the incisions were made outside of the cornea so there was no risk of damage to the cornea. Dr. Karas recommended proceeding with the RK.

[55] Dr. Jesperson understood the risks of RK were potentially some glare and starburst effect for a few months, certainly not on a permanent basis. There was the possibility that it might be necessary to undergo a further procedure to eliminate the need for glasses. He was adamant that he was not told by Dr. Karas that RK could result in permanent worsening of his sight or that there could be long-term effects to his vision. He did not want to proceed with the laser surgery given the potential for scarring to the cornea.

[56] Dr. Karas would have told Dr. Jesperson the fact that he was a -10 myope was not a problem as RK could correct vision worse than that. He agreed he likely said there was a 95% chance that he would not have to wear glasses after RK. If he fell into the 5% category, he would require further surgery, an enhancement; that was the downside of RK.

[57] The Defendant confirmed he probably said to Dr. Jesperson that in the worst-case scenario, he might still have to wear glasses, but they would be much thinner. Dr. Karas testified that his patients had not experienced any serious complications in the thousands of RK surgeries he had performed. He agreed he did not mention the possibility of glare or starburst effect or diurnal fluctuations that persisted, as he was not aware of these effects at the time. He did not tell the Plaintiff that following an RK, “the cornea is at increased risk of rupture from direct ocular trauma” as set out in the article “Complications of Radial and Transverse Keratotomy” by Rashid and Waring published in 1989 and marked as exhibit 34.

[58] At the time, Dr. Karas was doing PRK, but in his view, it was not the procedure of choice for Dr. Jesperson. Although Dr. Karas testified the results from PRK could be good, it could result in corneal scarring and haze especially for high myopics, so he did not generally recommend it to his patients, and he did not recommend it to Dr. Jesperson.

The consent form that was signed

[59] Doctors are responsible for ensuring the consent form their patients are asked to sign is accurate and fairly discloses the known risks of a procedure. Dr. Karas drafted the consent form that Dr. Jesperson signed (exhibit 1, tab A) when he attended for the RK surgery. While Dr. Karas generally followed the PERK consent form which was developed in the 1980’s (exhibit 32), the consent form that Dr. Karas had Dr. Jesperson sign was not identical to the PERK precedent.

[60] It made no reference to the possibility that his vision might be made worse by the RK. It failed to include the information on wound healing and the possibility that the incision might heal in an irregular fashion leaving a patient with distorted vision which necessitated the use of contact lenses to correct. There is no mention of the risks associated with a weakened cornea, such as ocular rupture. It also failed to refer to PRK as an option.

Analysis

[61] The consent form used by Dr. Karas is brief and uses general language such as “results of surgery cannot be guaranteed” and “it is impossible to state every complication that may occur as a result of any surgery.” There are certain self-serving statements such as “the doctor has answered all my questions to my satisfaction” and “It is impossible for the doctor to inform me of every possible complication”.

[62] Dr. Holland testified that the consent form used by Dr. Karas did not need to refer to the risk of development of irregular astigmatism, although his evidence on this issue was brief. He said simply that it mentioned some risks such as glare and at that time, the consent forms were not as detailed as they were in later years. He believed that the phrase “unforeseen complications may occur” covers the risk of an irregular astigmatism.

[63] Additionally, Dr. Holland has never performed RK surgery so he never had to provide a consent form to a patient dealing with the risks of RK surgery nor did he ever have to have a discussion with a patient on this area. That is not a criticism of Dr. Holland but it goes to the appropriate weight that ought to be attributed to his opinion on this issue.

[64] Dr. Salz, who discussed the surgery and reviewed consent forms for it with patients in his practice, testified that the risk of irregular astigmatism must be disclosed to the patient as it was the main risk of the surgery. I prefer the opinion of Dr. Salz, which is supported by Dr. Agapitos, over that of Dr. Holland. The fact that Dr. Karas alleges he never encountered it in his practice is of no moment; it was a material risk which ought to have been identified to Dr. Jesperson and discussed with him.

[65] The consent form signed by Dr. Jesperson is deficient; it fails to adequately set out the known risks of RK. The risks described in the Karas consent form are glare and fluctuations in vision for short or varying lengths of time but not indefinitely. Had the risks been discussed with the Plaintiff by Dr. Karas, the consent form would be of less significance, but the Defendant failed to have a proper discussion of the materials risks of the procedure with Dr. Jesperson so he could make an informed decision about whether to go ahead with the elective surgery.

[66] Dr. Karas’s explanation that he did not tell his patients about these other risks because none of his patients had never experienced them in the thousands of surgeries he had done is not acceptable. Dr. Holland agreed that it is particularly important for a patient undertaking elective surgery to be advised of the “common or significant risks” (transcript at p. 2857). A reasonable person trying to decide whether to undertake elective eye surgery would want and need to know the potential downside of the surgery, or the material risks.

Corneal Instability and Weakness

[67] Dr. Salz, Dr. Agapitos and Dr. Holland all agreed that RK weakens the cornea; the incisions that are made during the surgery alter the cornea such that its shape is changed, and it never returns to the strength it had pre-operatively. As a result, the literature, specifically the Rashid and Waring article published in 1989 (exhibit 34) reported that the cornea after RK was at an increased risk of rupture from trauma. Dr. Agapitos wrote an article in 1988 which was published in the American Journal of Ophthalmology which dealt with ruptures after RK. He testified that the incisions can come apart with trauma and that rupture may occur because of the weakness of the cornea.

[68] When various articles were put to Dr. Karas in cross examination that stated that corneas were weakened by RK and more susceptible to rupture following trauma, he disagreed with these statements and said that while he knew the literature reported this risk, he did not disclose it to the Plaintiff because he felt it was a non-issue. Dr. Karas denied this was a known risk of RK.

[69] I accept the evidence of the experts, all of whom agreed that the scars from RK cause the cornea to be weak and this is a permanent effect of the surgery. This information ought to have been disclosed to the Plaintiff by Dr. Karas and it was not. The fact that Dr. Karas had not encountered this problem with his patients who had RK does not relieve him of the obligation to disclose this risk to the Plaintiff.

Getting Rid of Glasses

[70] Dr. Karas agreed that he told Dr. Jesperson that there was a 95% chance that he would not require glasses after the RK surgery. If he fell into the 5%, he would require a second procedure, described as an enhancement, following which his vision “would not be that far from perfect”.

[71] Dr. Salz opined that there was a less than 50% chance that the Plaintiff would be free from glasses after the RK, given his poor vision. Dr. Holland agreed that Dr. Jesperson, a high myope, should have been told by Dr. Karas that it was unlikely he would be able to get rid of his glasses after the RK.

[72] The literature from the time, as well as the results of the PERK study did not support the statement made to Dr. Jesperson by Dr. Karas that there was a 95% chance he would not have to wear glasses after the RK surgery. While I acknowledge Dr. Karas’s testimony that he had patients with worse myopia than the Plaintiff, even -12 diopters, who after RK did not need glasses, that does not obviate the need for him to disclose to a Dr. Jesperson that given his high level of myopia, the chance of being able to play sports without glasses was not high, perhaps less than 50%. The likelihood of a result good enough to permit Dr. Jesperson to abandon his glasses for sporting activities needed to be thoroughly discussed by Dr. Karas, particularly since it was an elective procedure, and the reason he sought out the surgery.

Glare/Starburst

[73] The handout available at the office of Dr. Karas mentioned the side effects of glare and starburst, but noted they were “transient” (exhibit 7).

[74] The Plaintiff stated Dr. Karas told him these effects would last 2-3 months while the healing of the scars was happening. He understood they would go away in a short period of time. Dr. Karas confirmed that he likely never even mentioned the risk of glare or starburst because he had never had a patient who experienced these problems post-surgery. He agreed he would have told Dr. Jesperson such side effects were temporary and he would never have said there was a possibility that glare and starburst would persist because he claimed he was not aware of this possibility. Since this problem was reported in the literature in the mid-1980s, I do not accept Dr. Karas’s evidence on this point.

[75] The defence expert, Dr. Holland, agreed that one of the major risks of RK was glare which could persist and was not temporary and this was known as of 1994. Persistent glare and starburst effect were outcomes acknowledged as known risks by all the experts at trial; they ought to have been disclosed and discussed with Dr. Jesperson by the Defendant.

Fluctuating Vision and Blurriness

[76] The risk of diurnal fluctuation in vision or a difference in vision between day and night that could occur and persist post-surgery was noted in the PERK study in 1986: “We think that fluctuation of vision occurs because the structure of the cornea is weakened by the keratotomies and the slow corneal wound healing leaves some corneas persistently unstable...The time to stabilization of vision probably depends upon corneal wound healing, and it is now known when human corneas completely heal after surgery.” (Exhibit 81).

[77] In his evidence, Dr. Karas stated that he did not know the risk of diurnal fluctuation could persist for more than a few months. This is contrary to the evidence of all the experts. Dr. Salz testified that by 1994 it was well known that there was a risk of persistent fluctuating vision and long-term corneal instability. Dr. Holland testified that after the PERK study in 1986, the risk of persistently unstable corneas after RK was known and it would not be accurate for a surgeon in 1994 to advise a patient that diurnal fluctuation was only temporary, lasting a few months.

[78] Dr. Karas did not inform Dr. Jesperson of the risk of diurnal fluctuation could last indefinitely and he should have done so.

Irregular Astigmatism

[79] Dr. Karas acknowledged that he knew Dr. Jesperson had an intolerance for wearing contact lenses. Surprisingly, he testified that he did not think it was necessary to discuss with him the fact that if he developed an irregular astigmatism following RK he would have to wear contact lenses to get useful vision. He did not tell Dr. Jesperson about this risk because he asserted he had never had a patient who developed an irregular astigmatism following RK; to use his words, “it can never happen”. Dr. Karas believed that risk was associated with RK done in the Russian technique (from periphery of eye to centre), not the American technique (from centre of eye to periphery) which he used. Since he never discussed the possibility of irregular astigmatism, Dr. Karas certainly did not discuss the possible need for astigmatic keratotomy.

[80] Dr. Karas refused to concede that the potential of an irregular astigmatism was a known risk of the procedure at the time, even though the PERK study and the Waring text both indicated it was. I reject his evidence on this point; it is self-serving and contrary to the evidence of the other experts and the medical literature.

[81] The Karas consent form failed to describe the risk, which was well-known in 1994, of the development of irregular astigmatism due to irregular healing of the incisions. I do not accept Dr. Holland’s view that the phrase “unforeseen complications” covers the risk of the development of an irregular astigmatism. It was not “unforeseen”; it was a known risk of the procedure, perhaps the greatest risk and it was not disclosed to the Plaintiff. This was a serious issue for Dr. Jesperson, particularly because he did not have a tolerance for wearing contact lenses and glasses could not correct an irregular astigmatism.

[82] I find the risk of the development of an irregular astigmatism following RK was a material risk and an important one to the Plaintiff because of his inability to wear contact lenses. Dr. Karas failed to discuss this risk with the Plaintiff and it was incumbent on him to do so to obtain an informed consent.

Option of PRK

[83] PRK was being done in Canada in the 1990s when Dr. Jesperson attended upon Dr. Karas wanting a procedure to get rid of his glasses. Dr. Holland agreed that in 1994, PRK was being performed in Canada and eye surgeons were evaluating both PRK and RK. The PERK study published in 1990 noted that while hundreds of thousands of RK surgeries had been done worldwide in the prior 10 years, “There has been wide-spread publicity about RK in both the scientific and lay press with conflicting claims concerning its effectiveness and safety…”

[84] Dr. Jesperson arrived at the office of Dr. Karas with the understanding he was not a candidate for laser surgery. The comparison of the two procedures that Dr. Jesperson read clearly favoured RK over PRK and the handout noted that “PRK for higher than -7 is less predictable and is not recommended by Health and Welfare Canada.” (exhibit 7). The literature available in the office of Dr. Karas recommended RK over PRK.

[85] Although he disagreed that PRK was preferable for high myopics in 1994, Dr. Karas acknowledged PRK had advantages and he was aware of the discussion at the time about whether RK or PRK was better for high myopes. Notwithstanding this, he did not tell Dr. Jesperson that laser treatment was an option, one which did not alter the structure of the cornea.

[86] The experts disagreed in hindsight about whether PRK was a better option for Dr. Jesperson. I do not have to decide this point. In 1994, each procedure had its own benefits and drawbacks; Dr. Karas was a proponent of RK, not PRK, but he was required to have a fair, unbiased discussion with the Plaintiff to enable him to make an informed decision on which procedure to undertake. This did not occur.

Conclusion on Informed Consent

[87] I found Dr. Jesperson’s evidence about the discussions he had with the Defendant credible. Dr. Karas has no recollection of his discussions with Dr. Jesperson and no notes to assist him, but he did not dispute much of what Dr. Jesperson recalled about their discussions. Some of Dr. Karas’s evidence surrounding the informed consent discussion was not capable of belief, such as his assertion that he was unaware of the risk of developing irregular astigmatism following RK. Where there is a discrepancy on the evidence bearing on the issue of informed consent and what was communicated, I prefer the evidence of the Plaintiff.

[88] There were known risks of RK that Dr. Karas was obliged to disclose to the Plaintiff and discuss with him. These include the fact that RK involved cutting the cornea, which led to corneal weakness or instability; the potential that he might not get rid of his glasses; halo, glare and starburst in his vision on a permanent basis; fluctuating vision and loss of clarity of vision; and irregular healing of the incisions creating an irregular astigmatism which could not be corrected by glasses. As well, Dr. Karas was obligated to have a full discussion of the option of proceeding with PRK.

[89] Following the reasoning in White at para. 50 and giving “due consideration to the evidence of the patient and his family as to his general situation…and the information he would want to know in the circumstances…”, I find that there are two facts that are of significance: the fact that the eye surgery was an elective procedure; and the fact that the Plaintiff could not wear contact lenses with any success. Dr. Jesperson did not need eye surgery to function daily or to do his job as a dentist; he simply wanted to discard his glasses which were a nuisance when he played sports.

[90] The development of an irregular astigmatism following RK was a well-known risk which needed to be canvassed with the Plaintiff because if it occurred, it could not be fixed by wearing glasses and required the use of a contact lens, which was problematic for the Plaintiff.

[91] Dr. Jesperson was a young man who worked full time as a dentist, had 2 young children and was an active person. Dr. Karas knew that the work of a dentist required good, clear vision to do fine work in the small, dark spaces of the mouth. An individual who required excellent vision to work at his chosen occupation would not risk his career for the potential benefit of playing sports without glasses.

[92] Dr. Jesperson testified that if he had been informed by Dr. Karas that there was a risk his vision would be worse after RK or that he could develop an irregular astigmatism which required wearing a contact lens or that he would have fluctuating vision that impaired his ability to work as a dentist, he would not have undertaken the surgery. I accept that evidence. A reasonable person in Dr. Jesperson’s circumstances would not have agreed to the RK, had he been properly informed of the material risks associated with the surgery. Reibl v. Hughes, [1980] 2 S.C.R. 880.

[93] The consent form signed by the Plaintiff made no mention of these known risks, there was little or no discussion about them or of other options, and therefore Dr. Jesperson did not give an informed consent to the RK surgery.

(3) Did the RK surgeries by Dr. Karas on both eyes meet the standard of care in 1994 and 1995?

Legal Principles

[94] The law on standard of care is set out in Crits v. Sylvester, [1956] O.R. 132, where the Court stated, at p. 143:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

[95] Given that this case involves surgery that was undertaken in 1994 and which now is no longer being performed, it is important to note that the actions of a physician are to be judged in light of the medical knowledge that was available at the time of the alleged act of negligence. It is a well-established principle that “courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailing standards of professional knowledge.” Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.).

[96] It would be unfair and incorrect to judge the actions of a doctor after the fact, with the knowledge of the outcome. A doctor must be assessed against the reasonable doctor of average ability in the same circumstances at the same time: Lapointe v. Hopital le Gardeur, (1992) 90 D.L.R (4th) 7 (S.C.C.) . To put it another way, the doctor is to be judged taking into account the knowledge that was available and that the doctor possessed at the time of treatment.

[97] As well, the conduct must not be assessed by examining the result. A disappointing outcome does not mean the doctor was negligent. An error in judgment is not the same as negligence: Wilson v. Swanson, [1956] S.C.R. 804.

[98] Medical negligence cases, along with other professional negligence cases, require expert evidence to assist the trier of fact to determine the standard of care that is applicable, whether there has been a breach of that standard and whether the damages that result are caused by the negligence. It is for the trier of fact to make these determinations, which necessarily involves weighing conflicting testimony from similarly qualified experts and assessing the proper weight to be given to the expert opinions.

[99] In order to succeed at trial, a Plaintiff must prove both a breach of the standard of care as well as causation on a balance of probabilities. The Plaintiff must prove that “but for” the doctor’s breach of the standard of care, the injury would not have occurred: Clements v. Clements, [2012] 2 S.C.R. 181. It is not sufficient for the Court to infer causation or to draw an inference based on common sense; there is an onus on a Plaintiff to lead evidence to demonstrate that the defendant’s negligent conduct caused the injury. Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193.

The Evidence

[100] The Plaintiffs assert that Dr. Karas fell below the standard of care in his RK surgeries in 1994 and in 1995 because he created a clear zone which was 2 mm or less and the incisions went into the limbus which is an area of vascularization.

[101] Dr. Karas made eight incisions in each eye during the 1994 surgeries. During the 1995 enhancement procedures, he made eight additional incisions in each eye. Subsequently, Dr. Jesperson’s eyes have been examined using a slit lamp and various specialists have seen different numbers of incisions, but none have viewed fewer than 16 radial incisions in each eye.

Size of Clear Zone

[102] The PERK study indicated a clear zone of 3 mm should be used. The experts agreed that using the slit lamp beam technique is appropriate to measure the size of the clear zone and that it is expected there will be some difference in the measurements between various doctors due to inter-observer variability. All three experts as well as Dr. Karas concurred that the accepted standard in 1994 for the minimum clear zone in RK surgery was 3 mm.

[103] The Grimmett article published in 1993 and marked as exhibit 33, “Complications of Small Clear-zone Radial Keratotomy” stated:

It is generally accepted that the optical clear-zone diameter in modern radial keratotomy should rarely be smaller than 3 mm secondary to the high likelihood of including visually disabling glare, corneal instability and irregular astigmatism with resultant decreased best-corrected visual acuity...Another negative consequence of using small clear zones (longer incisions) in radial keratotomy is the possibility of inducing corneal refractive instability. Other factors involved in such corneal biomechanical instability include both deep corneal incisions and a high incision number. Corneal instability may be clinically translated into both short- and long-term visual fluctuation for any given patient.

[104] Dr. Karas could offer no evidence on the size of the clear zone in Dr. Jesperson’s eyes, as he did not have his records. He did not think he measured the clear zone after surgery. Dr. Jesperson’s clear zones were measured by Dr. George Waring III, Dr. Terrence O’Brien and Dr. Agapitos.

[105] Dr. Waring was one of the organizers of the PERK study and he conducted research in refractive surgery. Unfortunately, Dr. Waring passed away prior to trial. He was acknowledged by the litigation experts as a well-respected ophthalmologist and RK surgeon. The Plaintiff went to see him on October 29, 2012 and Dr. Waring’s report dated December 14, 2012 is contained in exhibit 2.

[106] Dr. Waring measured the clear zone in the left eye at 1.5-1.8 mm and in the right eye at 1.8-2.2 mm. He noted the transverse incisions intersected with the radial incisions. He documented irregular astigmatism in the left eye, described as moderately severe.

[107] Dr. O’Brien is an ophthalmologist practicing at the Bascom Palmer Eye Institute in Miami, Florida. The Plaintiff went to see him for another opinion in February 2016. Dr. O’Brien was not retained as a Rule 53 expert and he did not provide a report for use at this trial. His notes were part of exhibit 2. He did his measurements using a slit lamp and found 18 RK incisions with a 2 mm optical zone in each eye; in the left eye he noted crossing incisions and wound gape which he documented in his notes.

[108] Dr. Agapitos is a litigation expert retained by the Plaintiffs. He examined the Plaintiff on several occasions and delivered three Rule 53 reports. Dr. Agapitos measured the clear zone in the left eye at 1.57 mm and in the right eye at 1.74 mm. Dr. Agapitos testified that he was certain that the clear zone in each eye was less than 2 mm.

[109] While the defence submits that the Court should be hesitant to accept the evidence from Dr. Waring, Dr. O’Brien and Dr. Agapitos because they were hired as litigation experts in this case, I do not accept this submission. Dr. Agapitos was a litigation expert and delivered reports, the Plaintiff sought out Dr. Waring and Dr. O’Brien for opinions on possible solutions to his visual problems; these physicians were not hired by counsel for the purposes of this lawsuit. In any event, the experts who testified all agreed Dr. Waring and Dr. O’Brien were well-respected doctors in the field of RK; they were not “hired guns”.

[110] Drs. Waring, O’Brien and Agapitos each measured the optical zone using the appropriate technique and each of them documented a clear zone of 2 mm or less. The defence expert, Dr. Holland, stated that he expected Dr. Waring’s measurements were accurate. Dr. Karas offered as an explanation for the clear zones in Dr. Jesperson’s eyes being less than the standard by suggesting that the incisions from the RK may have lengthened over time, perhaps because Dr. Jesperson rubbed his eyes. None of the litigation experts who testified at trial endorsed this theory; instead, they agreed that the length of incisions from RK does not change with the passage of time.

[111] The apparatus used to make the impression on the cornea (exhibit 12) clearly showed where the incisions should be made and where the clear zone should be located, and Dr. Karas was an experienced RK surgeon. Making incisions that intruded into the clear zone such that it was smaller than recommended was negligent.

[112] Three respected RK surgeons have measured the clear zones in the Plaintiff’s eyes to be less than the standard 3 mm. Dr. Karas’s suggestion that the length of the incisions somehow changed over the years makes little sense and contradicts his own statements in the Consent Video (Exhibit 9). His explanation for the smaller optical zone is contrived and unsupported by any of the expert testimony or medical literature filed at this trial. I do not accept it.

[113] There is no doubt the clear zone is less than 3 mm; it is not necessary for me to determine the reason for this. Dr. Karas failed to adhere to the recognized standard for a clear zone when he did the RK surgeries and in doing so, he breached the standard of care of surgeons doing RK in 1994.

Incisions Crossing into Limbus

[114] The Plaintiffs allege that Dr. Karas was negligent when he performed the RK in 1994 because the incisions crossed into the limbus, which is the border between the cornea and scleral, the white part of the eye (exhibit 10). Dr. Karas denies that he did so and testified that it was his practice not to cross the limbus because that decreased the effect of the RK.

[115] The defence submits that Dr. Agapitos was the only expert who found the incisions extended into the limbus; however, that does not accord with the evidence.

[116] When Dr. Agapitos examined the Plaintiff in 2015 and in 2018, he observed 17 incisions on the left cornea and 21 incisions on the right cornea, some extended to the limbus or beyond. Dr. Thakrar noted incisions passing into the limbus in her examination of October 15, 2018.

[117] Dr. Salz testified that cutting into the limbus increases the risk of vascularization of the RK incisions and falls below the standard of care. During his testimony. Dr. Salz used the photos of Dr. Jesperson’s eyes taken by Keith Harrison, the optometrist who treated the Plaintiff for several years. These photos were marked as exhibit 24 and were also viewed electronically, which was very helpful. Dr. Salz used the photographs and identified for the court where the incisions went into the limbus. The photographs are objective evidence that the incisions go into the limbus.

[118] Dr. Karas offered the explanation that the length of the incisions may have changed over time and extended into the limbus at some point following the surgery. I reject this submission for reasons: first, Dr. Karas has no recollection of the surgery nor any notes to assist him; second, Dr. Karas has changed his evidence on the issue of whether the length of incisions can change over time; and finally, there are several credible witnesses who gave evidence that the incisions travel into the limbus, as well as the documentation in the photographs.

[119] The defence submits that the evidence concerning the incisions crossing the limbus should not be accepted because Dr. Jesperson has been examined by numerous ophthalmologists and none of the treating doctors noted any incisions crossing the limbus. Dr. Jesperson has a variety of problems with his eyes and the examining practitioners were not necessarily looking to see whether the incisions went into the limbus. The fact that other ophthalmologists did not comment on the incisions going into the limbus does not mean they did not observe this; it means they did not note it, although they noted other abnormal findings.

[120] Dr. Karas’s evidence on this point is of little assistance because he has no notes, no recollection and simply denies the incisions he made would have extended into the limbus. I accept the evidence of Dr. Agapitos, Dr. Thakrar and Dr. Salz that the incisions in the left eye extend into the limbus. This constitutes a breach of the standard of care by Dr. Karas.

(4) Did the astigmatic keratectomy (AK) in 1999 by Dr. Karas meet the standard of care?

[121] Dr. Jesperson testified that following the RK surgery in 1995 he noticed a gradual decrease in his vision in his left eye and he felt that it was not balanced with his right eye. He also experienced some blurriness in his vision. He returned to see Dr. Karas in approximately 1998 or 1999. Dr. Karas advised him that he had residual astigmatism which could be corrected by an AK. He explained this surgery involved making more incisions in the left eye, at right angles to the existing incisions, to change the shape of the eye. There was no discussion about any risks associated with AK. Dr. Jesperson was not asked to sign a new consent form for the AK, nor was he required to pay for the procedure. He followed up with Dr. Karas regularly and used steroid drops for a couple of months.

[122] Since Dr. Karas did not have his notes or any operative records, he testified based on his usual practice. He agreed that he intersected the RK incisions with 3 transverse incisions and he denied that this technique had been abandoned by 1999. He was aware of the risks associated with this surgery, specifically that the intersection of the incisions might not heal properly causing wound gape, which could result in corneal instability. His practice was to see patients after the AK on a daily basis to ensure “perfect healing” and he had never had a complication from doing the AK surgery in this fashion.

[123] Both Dr. Salz and Dr. Agapitos testified that the practice of crossing RK incisions with AK incisions fell below the standard of care as this technique had been abandoned by the mid to late 1980s. They stated that it was well-known that intersecting incisions could result in increased scarring, irregular astigmatism and potentially, wound gape and corneal instability.

[124] Dr. Holland was not asked to opine on the standard of care issues related to the AK surgery, but he agreed that crossing incisions had been abandoned for years prior to 1999 because of complications associated with it. He concurred that this risk ought to have been disclosed to Dr. Jesperson.

[125] I reject Dr. Karas’s evidence that surgery involving intersecting incisions was still being performed in 1999; it contradicts the literature at the time, specifically exhibits 25, 26, and 34, the articles by Dr. Waring, as well as all the expert evidence on this point. The fact that he had not encountered this complication in prior surgeries or that he was vigilant about follow-up care does lead to a finding that his method of performing the AK surgery met the standard of care in 1999. The crossing of incisions by Dr. Karas during the AK was negligent.

[126] While the defence submits there is no evidence of wound gape in the Plaintiff’s eyes, I do not accept this submission. Dr. O’Brien, a respected corneal surgeon in Florida, in his examination in 2016, noted “crossing arcuate incision with wound gape” (exhibit 2 tab 21) in the left eye. Dr. Salz identified wound gape in the photographs taken by Dr. Harrison in 2010 (exhibit 24).

[127] Dr. Agapitos examined the Plaintiff in 2015 and again in 2018. He identified wound gape at the intersection of incisions, which he said was indicative of poor wound healing (exhibit 43). He testified that the AK was done to improve vision which had deteriorated likely due to the presence of the astigmatism, because of the instability of the cornea due to the number of incisions made and the too small optical zone.

[128] Dr. Holland testified there was no evidence of wound gape until 2015 when it was identified by Dr. Agapitos, and he said it could not suddenly arise 9 years after a procedure, so he doubted its presence. If there was wound gape, Dr. Holland testified it would have been observed by other doctors after the AK and it was not, despite the number of specialists the Plaintiff saw.

[129] I prefer the evidence of Dr. Salz and Dr. Agapitos on this issue over that of Dr. Holland, who never examined the Plaintiff’s eyes but based his opinions on a review of the medical documentation and the other expert reports. Furthermore, I do not agree that there is no credible evidence of wound gape; it was noted by Dr. O’Brien, Dr. Agapitos and identified on the Harrison photographs by Dr. Salz.

[130] There are no records from Dr. Karas for his treatment of Dr. Jesperson after the AK, so it is unclear how the incisions healed. Dr. Holland agreed that the fact the Plaintiff used steroid drops for 2-3 months after the AK suggested there might have been a problem with wound healing. He also agreed that there were elevations in the scarring at the top of the eye where the AK incisions crossed the RK incisions, which was consistent with irregular healing from the crossing of the incisions.

[131] There was no other evidence at trial as to what could have caused wound gape apart from the intersecting incisions. One of the identified risks of intersecting incisions was the potential for poor healing and the development of wound gape. I accept that the Plaintiff has wound gape at the intersections of 3 of the incisions. The only reasonable explanation for the existence of wound gape in the left eye of the Plaintiff is the intersecting AK incisions. The manner in which the AK surgery was performed by the Defendant constitutes a breach of the standard of care.

(5) Did the cataract surgery in 2001 meet the standard of care?

[132] In 2001, the Plaintiff returned to see Dr. Karas as he felt the vision in his left eye was again steadily deteriorating. Dr. Karas told him that he had developed a cataract in his left eye and that he could remove the cataract and replace the lens.

[133] The experts agreed that there were different ways of proceeding with cataract surgery and one of the accepted methods was to proceed through the cornea which involved crossing an RK incision, while the other approach was to make a scleral tunnel.

[134] According to Dr. Jesperson, there was no discussion with Dr. Karas about the method of surgery he planned. Dr. Karas agreed he did not advise the Plaintiff that he intended to cross an RK incision with another incision during the cataract surgery.

[135] Dr. Karas considered different ways of performing the surgery but chose to make an incision in the clear cornea because doing the scleral tunnel procedure had associated risks. In his experience, complications and uneven wound healing were more likely to occur if the scleral tunnel approach was used than if an incision was made in the cornea.

[136] On July 5, 2001, Dr. Karas performed the cataract removal surgery through the cornea, crossing the existing RK incisions with the cataract incision put in place an intra-ocular lens in the left eye. The Plaintiff experienced some cloudiness in his vision and underwent laser capsulotomy on 3 occasions after the cataract surgery.

[137] Dr. Karas knew of the possibility of opening some of the existing incisions and he was very careful during the surgery as a result. He did not undertake the other option, the scleral tunnel, because it carried too many risks and complications due to the fact that the sclera is vascularized.

[138] Dr. Salz testified that while the Plaintiff had a good result from the cataract surgery, the manner in which it was performed was below the standard of care. Dr. Karas used the wrong approach for the cataract surgery, according to Dr. Salz: he made the incision in the cornea as opposed to the sclera. In doing so, Dr. Karas crossed the RK incisions once again, which increased the irregularity in the Plaintiff’s cornea.

[139] Dr. Holland testified that the cataract surgery was technically difficult because of the number of incisions that existed and his choice of the power of the lens. He opined that Dr. Karas performed the surgery in an expert manner and the results were excellent. In his opinion, the way the surgery was done met the standard of care.

[140] All the doctors, both treating and experts, agree that Dr. Jesperson obtained an excellent result from the cataract surgery. There is no evidence that the incision made for the cataract surgery healed improperly or resulted in wound gape.

[141] The experts all agreed that crossing a radial incision with a cataract incision could have the same complications as crossing an AK incision. There was a paucity of evidence as to what role, if any, the cataract surgery played in Dr. Jesperson’s visual problems. Dr. Breslin, who assessed the Plaintiff at the request of his long-term disability insurer, RBC, stated, “In 2001 Dr. Jesperson underwent cataract extraction of his left eye…This has no bearing on his disability.” (Report June 19, 2011 JMB tab 14).

[142] I accept Dr. Karas’s evidence that he considered doing a scleral tunnel but rejected it in favour of an incision in the clear cornea, which he deemed to carry less risks. It was within his purview as a surgeon to determine the best manner of surgery and he decided to proceed via the cornea. Dr. Karas was an experienced refractive surgeon; it was an exercise of clinical judgment as how best to approach the procedure. None of the experts opined that he ought to have proceeded by way of a scleral tunnel procedure. This decision was an appropriate, and the cataract surgery met the standard of care. Furthermore, I am not persuaded that the method of the cataract surgery played a role in the Plaintiff’s subsequent vision problems.

(6) What is the cause of Dr. Jesperson’s visual disability?

[143] It is not in dispute that Dr. Jesperson has been left with serious vision problems: poor depth perception; fluctuating vision; blurred vision; glare and starburst. He has difficulty wearing the scleral lens and his left eye becomes fatigued easily.

[144] The position of the Plaintiffs is that the reason Dr. Jesperson has poor vision is due to his unstable cornea and significant irregular astigmatism and scarring. They assert that the cause of the permanently unstable cornea is the RK surgeries which were performed negligently with too small clear zones, too many incisions, some of which extend into the limbus and intersect with other incisions from subsequent surgeries.

[145] The Defendant argues that Dr. Jesperson’s vision problems are the not result of the surgeries performed by Dr. Karas between 1994 and 2001. Rather, he had years of very good vision following the surgeries until 2008, when a bug flew into Dr. Jesperson’s eye, causing trauma, including scarring and neovascularization.

Evidence surrounding the “bug incident”

[146] Dr. Jesperson could not recall with any specificity when the bug incident occurred, it was likely sometime in 2007 or 2008. He testified that he was in the backyard doing some yard work when a bug, perhaps a gnat, flew into his left eye. The eye went red immediately, he felt that he had experienced an allergic reaction and he put some drops in his eye. He recalled it took a day or two for the redness to go away; he did not seek medical treatment after this incident, and he did not notice any change in his vision. This evidence was confirmed by the testimony of Irena.

[147] In May 2008 when he had a sty in his left eye, and he went to see his family doctor, Dr. Sussman, he told him about the bug incident. Dr. Sussman gave him a prescription for an anti-biotic eye drop in case he experienced this reaction again.

[148] The Plaintiff testified he noticed a slow, gradual change in his vision starting in early 2008, as he had in prior years, which had caused him to return to see Dr. Karas and further surgery. He thought he might need a further enhancement, so he arranged an appointment with Dr. Karas for November 14, 2008.

[149] In his office notes for that day, Dr. Karas wrote, “Had severe injury last year in left eye–bug flew with severe symptoms—resulted blurry vision—my diagram shows corneal scar and vascularization in the inferior nasal area and clear central cornea.” Dr. Jesperson denies that he described the bug incident to Dr. Karas as “a severe injury” as noted in his chart. Dr. Karas told him that he had a scar on his cornea with blood vessels growing into it, and a large astigmatism which could not be corrected by glasses. The Plaintiff says that he was shocked to learn of scarring on his eye and there was no discussion of what might have caused it. He was very upset because he knew that he could not work with contact lenses. Dr. Karas gave him steroid drops to use to shrink the blood vessels and another appointment was arranged for the following week.

[150] On November 21, 2008, Dr. Jesperson returned to see Dr. Karas and there had been no change in his vision with the steroid drops. There was no discussion of what might have caused the scarring; instead, Dr. Karas referred him to Dr. Slomovic, whom he described as an ophthalmologist who was a cornea specialist.

[151] When he went to his first appointment with Dr. Slomovic in March 2009, he met with a resident who took a history. He was asked to fill out a form with his history. He wrote “Bug! Flew in eye; conjunctivitis, corneal scar”. He recalled discussing the bug incident with the resident, who told him the bug could not have caused an injury.

[152] Dr. Slomovic’s note of April 23, 2009 (exhibit 2, tab 8) states “He has been complaining of increasing haze in the left eye for the past six months. He has a history of what he believes was a bug that flew into his left eye which he self-medicated himself for with Benadryl for several days. The eye was red and painful during that time but resolved over one week’s time.”

[153] That is the extent of the evidence surrounding the bug incident.

Timing Issue

[154] The Defendant submits that Dr. Jesperson had excellent vision for the 14 years following the RK surgeries; I do not accept this submission as it does not accord with the evidence. Dr. Jesperson had the initial RK surgeries in 1994, but he still had to wear glasses for sports as the results were not optimal and required a further surgery. After the 1995 enhancement procedure, his vision was “markedly improved”, although he still wore glasses at work. He was, happily, able to do sports without glasses. He was clear in his evidence, however, that after the enhancement surgery in 1995 he gradually noted a deterioration in the sight in his left eye, and that is what prompted him to return to see Dr. Karas in 1999. It was because of a deterioration in his vision that Dr. Karas did the AK; if his vision was “excellent” as the defence suggests, it would not have been necessary to undertake a further procedure.

[155] Following that procedure, Dr. Jesperson noticed that his glasses were not improving his vision sufficiently and he attended upon Dr. Karas again and was told he had a cataract in his left eye which required surgery. Following the cataract surgery, Dr. Jesperson testified his vision was improved although he noticed starburst in the sunlight.

[156] It is unfortunate we do not have Dr. Karas’s office chart, which would shed light on the status of the Plaintiff’s vision in the years following the RK.

[157] From 2001 to 2008, there were gradual but significant changes in Dr. Jesperson’s vision: his astigmatism increased, and his refraction went from 20/25 to 20/40 with fluctuation. Dr. Salz and Dr. Agapitos testified there were gradual changes in the Plaintiff’s refractions from 2002 onwards, due to the instability of his cornea, arising from the too small clear zone and intersecting incisions.

[158] The submission of the defence that there would need to be evidence of vision difficulties soon after the eye surgeries to establish a causal relationship is not supported by the expert opinions that I accept or the medical literature on this issue.

[159] Dr. Salz explained that when a patient has an irregular astigmatism, the cornea is unstable and there can be fluctuating visual problems that progress over the course of years. He stated that a person could have stable vision for a number of years and then deterioration in the form of glare, scarring and irregular astigmatism, all due to an optical zone that is too small. Dr. Salz said the deterioration could happen “late”, meaning years after the RK, and that occurrence was not unusual; he has seen it many times in his practice. The deterioration in vision can occur years later because the unstable cornea from the RK can change over time.

[160] Dr. Agapitos concurred with view of Dr. Salz that a person might have good vision after RK for years and then experience deterioration. He examined the Plaintiff’s eyes in 2015 and in 2018. He found scarring of the cornea and neovascularization of 4 of the radial incisions, which indicated the irregular astigmatism was getting worse and the scarring more extensive. Dr. Agapitos testified this was a progression of the process. He agreed that it was not unusual to have progression of the astigmatism and scarring many years after the original surgery because the cornea is unstable due to the numerous incisions, some of them intersecting.

[161] Dr. Holland acknowledged that corneal instability post RK can cause gradual changes in vision which worsen to the point that they are recognized by the patient who then seeks medical attention. He agreed that one of the concerns of RK surgery was the long-term outcome. The Grimmet/Holland 1996 article which was marked as exhibit 33 discussed the problems associated with clear zones that are created too small during RK surgeries. In that article, the authors noted that patients could experience both short term and long-term visual problems.

[162] All of the experts who testified agreed that corneal instability can cause vision problems that develop shortly after RK surgery or years afterwards.

Expert Opinions on the Bug Incident

[163] The experts were asked to opine on the role of the bug incident with respect to the Plaintiff’s current vision difficulties. Dr. Salz and Dr. Agapitos both testified that it was extremely unlikely that the bug caused the vision problems. Of significance was the fact that the irritation caused by the bug resolved within a week at the outside and did not require prescription medication.

[164] Conversely, Dr. Holland testified that the bug incident was critical to the development of Dr. Jesperson’s vision difficulties. Although he acknowledged there was a paucity of information about the incident because Dr. Jesperson did not get medical treatment, Dr. Holland stated it is possible he got an infection from the bug which caused inflammation, scarring and neovascularization to his left eye and the resultant vision problems. He placed great emphasis on the fact that the Plaintiff had years of good vision, and in 2008 he experienced a sudden deterioration which was related to the incident where the bug flew into Dr. Jesperson’s eye. Dr. Holland’s opinion is that the Plaintiff’s visual deficits are unrelated to the RK and AK surgeries and instead arise from the bug incident or an infection.

[165] There are no contemporaneous medical records documenting any medical treatment following the bug incident. In December 2007, the Plaintiff’s optometrist, Dr. Musaji, noted an allergic reaction in the right eye that had resolved, but no notation of anything dealing with the left eye.

[166] When the Plaintiff saw Dr. Slomovic, he told him about the bug incident and gave the same history as he did at trial; that the reaction resolved without medical intervention in a matter of days. There is nothing in the voluminous records of Dr. Susman, the family doctor, in 2007 or 2008 concerning an eye injury from the bug. The Plaintiff did attend upon him in May 2008 because he had a sty in his eye, but there is no notation of the bug incident.

What caused the vision problems Dr. Jesperson experienced?

[167] Dr. Salz is of the opinion that Dr. Jesperson has an unstable cornea as a result of the improperly performed RK surgeries because the clear zones were created too small, the incisions extended into the limbus and there were intersecting incisions. He has a permanent irregular astigmatism which cannot be corrected by glasses and as a result, he has poor depth perception, and fluctuating vision, as well as other problems.

[168] Dr. Agapitos stated there is a great deal of evidence to support the contention that the corneal instability from which Dr. Jesperson suffers was caused by the RK surgeries and the fact that he has a too small clear zone with multiple incisions and the crossing of those incisions. Dr. Agapitos opined that the RK incisions vascularized because they extended into the limbus, an area with blood supply.

[169] When Dr. Slomovic removed part of the scar in March 2009, he noted it was elevated and vascularized, deep in the cornea. In addition, Dr. Agapitos stated that the cylindrical readings which fluctuate continually are indicative of corneal instability and that they are not consistent with trauma from a bug or an infection.

[170] The defence theory is that the bug incident caused the scarring and neovascularization which have led to corneal instability, and the irregular astigmatism. This theory relies on the sudden and dramatic change in the Plaintiff’s vision which allegedly occurred in the same timeframe as the bug incident, in late 2008. Dr. Holland opined that the bug incident is the sole cause of the Plaintiff’s visual deficits and that Dr. Karas’s surgeries played no role.

[171] Dr. Salz, Dr. Agapitos and Dr. Holland all agreed with the views expressed in the article by Grimmett and Holland, “Complications of Small Clear Zone Radial Keratotomy” 1996, filed as exhibit 33, where the authors state, “It is generally accepted that the optical clear zone diameter in modern RK should rarely be smaller than 3.0 mm secondary to the high likelihood of inducing visually disabling glare, corneal instability, and irregular astigmatism with resultant decreased best corrected visual acuity.”

[172] The refractions done by numerous practitioners demonstrate that Dr. Jesperson has significant irregular astigmatism, worse in the left eye. In the article by Rashid and Waring published in 1989 (exhibit 34), “Complications of Radial and Transverse Keratotomy” the authors wrote:

Functionally significant irregular astigmatism occurs most commonly in eyes that have had repeated operations or “creative keratotomy” consisting of intersecting radial and transverse incisions, combined radial and circumferential incision or incisions that extend too close to the visual axis. Irregular astigmatism can devastate visual function not only decreasing best corrected spectacle visual acuity, but also producing glare and light sensitivity. If mild to moderate, the astigmatism can be masked by a rigid, gas permeable contact lens, but if it is severe, the patient suffers. (Page 82).

[173] Unfortunately, this is exactly what has transpired with Dr. Jesperson. Dr. Karas’s “creative keratotomy” with incisions that intersect combined with a too small optical zone have resulted in significant irregular astigmatism in the left eye and it has “devastated [his] visual function”.

[174] The Plaintiff’s eyes have been examined by a multitude of exceptionally qualified ophthalmologists and optometrists, all of whom have noted significant irregular astigmatism. All the experts agreed that a person can have leakage of lipids from vascularized RK scars, which can lead to corneal scarring.

[175] Dr. Slomovic is the corneal specialist to whom the Plaintiff was referred after Dr. Karas noted neovascularization of the scar in the left eye. He was not retained for the litigation; his opinions, as set out in his notes, are those rendered in the course of his treatment. Dr. Slomovic removed some of the scar on July 3, 2009 and noted the corneal scar had lipid exudation from the vascularized RK incisions. His opinion was that the Plaintiff had corneal astigmatism associated with the inferonasal scar. Dr. Slomovic was aware of the history of the bug incident and he did not attribute the scarring to anything related to the bug.

[176] While I concur that the Plaintiff experienced relatively stable vision for a period of time after the cataract surgery in 2001, I do not accept the submission that there is evidence that the bug incident was a serious one which caused the Plaintiff’s current vision problems. There is absolutely no evidence he had an infection, let alone a serious infection.

[177] I accept the view of Dr. Agapitos that if the Plaintiff had had a significant eye irritation from the bug flying into his eye, or if he had had an infection serious enough to cause scarring, he would have had to seek medical treatment and obtain prescription medication in order for it to resolve. There is no evidence that he did. The history is clear that Dr. Jesperson is quick to seek out medical treatment if he has an issue concerning his eyes.

[178] Dr. Holland’s suggestion that the Plaintiff developed a herpetic infection which caused the eye symptoms is not supported by the evidence. The experts agreed that a herpetic infection serious enough to cause eye scarring would require medical treatment in the form of prescription medication and there is no evidence that Dr. Jesperson was given a prescription for the irritation in his eye following the bug incident.

[179] Dr. Salz stated that if the Plaintiff had a herpes infection in his eye severe enough to cause scarring in the eye, the herpes infection would have had to be chronic or recurring and again, there is no evidence of this.

[180] Furthermore, Dr. Salz and Dr. Holland concurred that scarring from a herpetic infection is usually round. Dr. Jesperson’s eyes have been examined by numerous specialists and while the corneal scar has been identified, no-one has noted it as a round scar.

[181] The defence theory on causation requires the Court to ignore the fact that Dr. Jesperson has the visual deficits that were known to develop if clear zones of less than 3 mm were created during RK surgery as well as the problems identified when intersecting incisions were made, both of which Dr. Karas created when he did the surgeries. The problems that Dr. Jesperson experienced were clearly identified in the literature as risks of RK with a clear zone less than 3 mm. The defence theory asks the Court to find that the surgeries played no role in the Plaintiff’s visual deficits and instead, the bug incident which required no medical treatment, is the cause. This theory is fanciful, in my view, and it is rooted in speculation and ignores the undisputed evidence of the consequences of an unstable cornea and irregular astigmatism, which were caused by the Karas surgeries.

[182] I do not find that the bug incident caused the profound scarring that has been identified by the ophthalmologists who have examined the Plaintiff’s eyes. Rather, the irregular astigmatism is the result of the fact that the RK surgeries were performed negligently with a clear zone that was too small, incisions that extend into the limbus, incisions that crossed with other incisions, with the resultant neovascularization in the cornea and scarring.

[183] Dr. Jesperson has all of these problems and I am persuaded on the evidence on a balance of probabilities they are the direct consequences of the negligence of Dr. Karas from the surgeries which have resulted in an unstable cornea, scarring and irregular astigmatism.

(7) What are the Plaintiffs’ damages?

The Claims of Brent Jesperson

Evidence at trial

[184] Dr. Jesperson graduated from dentistry at the University of Toronto in 1986 and did a further year of training. In 1987, he and a friend from dentistry school, Dr. Greg Iatropoulos, opened a practice together in Pickering. Essentially, they had a cost-sharing arrangement: they split costs equally and kept their revenues separate. To a large extent, the practice was comprised of families and most new clients were obtained through referrals.

[185] The dental practice was successful and growing, and they moved to larger premises. Several hygienists worked along with Dr. Jesperson and his partner. The Plaintiff received a salary from the corporation as well as the profit from the practice. In the 3 years prior to 2009 when he stopped working, Dr. Jesperson earned total annual income of approximately $400,000. In 2008, a renovation was undertaken at the office to make another operatory, bringing the total to 6.

[186] Dr. Jesperson worked after the various eye surgeries. He experienced vision problems which led him to see Dr. Karas again in November 2008. At that appointment, Dr. Karas told him that he had a large astigmatism and blood vessels growing into the scar on his left cornea; he said that this problem could not be corrected with glasses. He referred him to Dr. Slomovic, and an appointment was arranged. Dr. Jesperson saw Dr. Slomovic in March 2009; after examining him, Dr. Slomovic told him there was nothing he could do surgically to improve his vision and he suggested the Plaintiff try using rigid contact lenses.

[187] Dr. Jesperson had rigid contact lenses fitted for him but they did not work and they irritated his eyes. During this time, Dr. Jesperson testified that working was “horrible” as his vision was deteriorating, and it was getting more difficult to work on his patients. He experienced problems with blurred vision and he lacked depth perception. He was no longer confident in his own abilities; he worried about the use of a drill when he could not see into the small, dark spaces of his patients’ mouths. He said nothing to his dental partner, Dr. Iatropoulos, because he was worried that his patients would find out about his vision problems. He was terrified thinking about his future.

[188] Dr. Jesperson contacted the assistance program offered through his dental association although he never followed up on it. He went to see his family doctor, Dr. Susman, and told him that he felt his dental career was in jeopardy and he was having suicidal thoughts. Dr. Susman gave him a prescription for an anti-depressant medication. He hired an associate to work on Fridays.

[189] At the end of June 2009, the Plaintiff went to see Dr. Slomovic and told him that the contact lenses were not working and that something needed to be done. Dr. Slomovic said he would remove the nodule from his cornea which might help, although he cautioned him not to be too hopeful. Dr. Jesperson thought he would be off work for about a week and arranged for the associate, Dr. Abdu, to cover for him while he was off. He informed Dr. Iatropoulos about his vision problems and the proposed surgery with Dr. Slomovic. They signed an agreement on June 29, 2009 in which they agreed that the practice had a value of $700,000 and that if one of them became disabled, the other would buy him out for that amount.

[190] On July 3, 2009, Dr. Slomovic did a keratectomy. Dr. Jesperson did not notice a change in his vision following this procedure. While wearing glasses he had no depth perception and he could not focus properly. He was unable to determine the height of things and everything was blurry. His vision fluctuated from morning to evening, and he had glare and a starburst effect. He could not work; he was depressed and felt suicidal; he could barely get through the day.

[191] Dr. Jesperson applied to his insurer, RBC, for disability benefits and for payment of his overhead expenses. Dr. Jesperson felt helpless and hopeless; his wife arranged an appointment with a close friend who was an emergency room doctor and a referral was made to Dr. Cheskes at the Bochner Eye Institute.

[192] The Plaintiff saw Dr. Cheskes on July 27, 2009. He examined his eye and told him there was nothing that could be done because the cornea was too unstable. Dr. Cheskes said the only option was to use contact lenses and referred him to a very good optometrist, Dr. Nikeghbal.

[193] The Plaintiff returned to see Dr. Slomovic who advised him to continue trying to find a contact lens that would work. He tried a number of custom fitted lenses, but he could only wear them for a very short period of time before his eyes got red and irritated and he had to take them out. One of the optometrists the Plaintiff saw recommended the use of a scleral lens, which is a larger lens that fits over the area of scarring. Dr. Jesperson was fitted for a scleral lens, which he found to be of some modest benefit in improving his vision. However, his use of it depended on the day and the amount of humidity—if it was dry out, the lens would irritate his eye and he would have to remove it after wearing it for only a short period of time.

[194] The Plaintiff went to see another refractive surgeon, Dr. Rootman, who also recommended the use of contact lenses. They had a discussion of a possible lens implant, the piggy-back intraocular lens implant, which was being done in England and in parts of Europe. Dr. Rootman indicated he could do this surgery. The Plaintiff went to see Dr. Slomovic to discuss this form of surgery. Dr. Slomovic said the piggyback intraocular lens surgery was relatively new and he did not recommend it because there were potential serious side effects; one of his patients who had it done lost total vision in his eye. Dr. Slomovic told him he did not think the piggyback intraocular lens surgery would be successful. Rather, he felt the use of the scleral lens was giving the Plaintiff improved vision in his left eye and that was the best way to proceed. As a result, Dr. Jesperson did not proceed with the implant surgery proposed by Dr. Rootman.

[195] Dr. Slomovic recommended injections in his left eye to shrink the blood vessels, to assist with his wearing contact lenses. He had several of them starting in August 2010 which were of some benefit.

[196] The Plaintiff continued to seek opinions from a variety of ophthalmologists and optometrists. In 2015 he was examined by Dr. Mandelcorn, a specialist in Toronto. Dr. Mandelcorn told him that he had numerous scars on his cornea from the various surgeries which were causing his vision problems. Dr. O’Brien, a refractive surgeon in Miami, told him to continue with the scleral lens; he agreed that Dr. Jesperson’s cornea was not stable and the risks of another surgery were too great.

[197] The Plaintiff has not worked since July 2009 and the surgery by Dr. Slomovic. He testified that he is not capable of the fine focus work that is necessary to work as a dentist. He continues to experience blurred vision and fluctuations in his vision throughout the day which would prevent him from operating a drill or other high-speed instruments. He cannot do detail work because of his problems with depth perception. He cannot see well enough to work in the small spaces in patients’ mouths. Furthermore, if he was having a day when his eye was red, he could not wear his scleral lens and so he would not be able to work at all.

[198] When he did not return to the practice, he received disability benefits from RBC and the business overhead expense policy paid the specified amount for 2 years. In September 2011, he sold his half of the practice to his partner, Dr. Iatropoulos, pursuant to their agreement. Dr. Jesperson testified that this was extremely upsetting to him. In 2012, he resigned his license with the College. He settled his claims with his long-term disability insurer for a lump sum in December 2016.

[199] Dr. Jesperson finds that environmental factors affect how long he can wear the scleral lens; it is better outdoors or in a humid climate. Indoors, in the winter with heat, he can only tolerate the lens for an hour or so. His life has changed dramatically because of his vision difficulties. He cannot work as a dentist, he gets eye strain which causes headaches, and he finds he is fatigued. His life is quieter now, and he and Irena spend most evenings at home. Dr. Jesperson and Irena have been spending the winters in Florida since 2013 or 2014 because his eye feels much better in the sunshine and in the humidity.

[200] The evidence of Dr. Jesperson was corroborated by his wife, who described his struggles to accept the loss of his dental career and the need to essentially find a new life.

Positions of the Parties on loss of income

[201] The Plaintiffs claim a past loss of income and a future loss of income based on the inability of Dr. Jesperson to work as a dentist. This is premised on Dr. Jesperson earning $458,337 as of 2009, and assuming his income would continue to increase in line with the Ontario Dental Association (“ODA”) increased rates annually. At best, the Plaintiff could work part-time 15 hours a week as an instructor at college.

[202] The Defendant submits that the Plaintiff never attempted to return to work as a dentist for reasons which were not explained. The evidence indicates he can wear the scleral lens for 5-6 hours a day, which is long enough to work as a dentist. He could have undertaken the piggyback lens surgery with Dr. Rootman in 2009 which would have improved his vision sufficiently for him to return to working as a dentist. The Plaintiff did nothing to make any changes in the practice when he was not working; another associate could have been hired to work evenings and weekends, doing the more complicated work. If Dr. Jesperson could not work as a dentist after 2009, he ought to have retrained in some capacity, since he is not unemployable. Since the Plaintiff was in receipt of significant amounts of disability benefits, there was little incentive for him to go back to work.

[203] Both parties called expert evidence on the issue of Dr. Jesperson’s employability.

[204] Dr. Randy Fisher, the expert called by the Plaintiffs, is a dentist practising in mid-town Toronto and he was qualified to provide an opinion on the ability of Dr. Jesperson to practice dentistry. He noted that most of the work of a dentist involves fine, detailed work in small, dark areas with an instrument and this requires excellent vison. This includes endodontic services, periodontal work, prosthetics, oral surgery, restorative work on teeth and preventative work.

[205] Even if Dr. Jesperson were able to work for 2-3 hours per day with his lens, Dr. Fisher did not think this was a realistic possibility. Patients would be reluctant to have Dr. Jesperson as their dentist if they knew he had certain restrictions and might not be able to do the necessary dental work. It would be difficult to have an associate willing to work to finish work Dr. Jesperson started but could not complete. Furthermore, it would be problematic to have an equal partner who is not working full time. Dr. Fisher is of the opinion that it is not feasible to run a dental practice with Dr. Jesperson working 2-3 hours/day; practice value might diminish, patients might not want to continue with him, and his partner would not be content.

[206] Dr. Fisher did not support the notion of having associates join the firm to replace the time that Dr. Jesperson cannot work. Because it is a referral-based practice, patients may not be accepting of a new associate; they would expect to see Dr. Jesperson when they came for their appointment.

[207] Dr. Lerner, the dentist who testified on behalf of the defence, currently works 3.5 days a week at his dental practice in Thornhill. Dr. Lerner opined that Dr. Jesperson could wear the scleral lens and work as many hours practising dentistry as he felt capable of, doing and the associates could do the remaining work. Dr. Jesperson could use his time when he was not performing dental work to do supervisory functions in the office.

[208] The Plaintiffs called Christie MacGregor, a vocational rehabilitation consultant who was qualified to offer an opinion on Dr. Jesperson’s employability. Ms. MacGregor concluded he could not work as a dentist due to his visual problems. She believed that he could work part-time selling dental equipment, 10-20 hours per week. Another potential job is working as an instructor in dentistry at a college on a part-time basis.

[209] Mr. Campbell, the occupational therapist who testified on behalf of the Defendant, testified that while Dr. Jesperson has vision problems, he could work on a full-time basis or part-time basis and he suggested a few job options. Because he owned his own practice, Mr. Campbell would have advised him to stay in the business as long as he could because of the flexibility it provided.

[210] Mr. Campbell believes the Plaintiff could work in different capacities. He could oversee the work of other dentists for the Royal College of Dentists or teach at the college level. He could also work in the sales of dental equipment. All these jobs would provide the Plaintiff with flexibility and do not require visual acuity. Mr. Campbell stated that the Plaintiff could have returned to some form of employment in 2009.

Can Dr. Jesperson work as a dentist with his eyes in their present state using the scleral lens, and could he have done so in 2009?

[211] Dr. Jesperson used to wear glasses at work and with glasses. He had very good vision when he did. Glasses no longer correct his vision because he has an irregular astigmatism; he must wear some form of contact lenses. He has been fitted with a scleral lens, most recently by Dr. Thakrar.

[212] The ability of the Plaintiff to tolerate the scleral lens is in issue in this lawsuit. The Plaintiff is adamant that he has tried but he cannot wear the lens for any length of time because it irritates his eye; furthermore, he finds his ability to wear the lens is affected by weather and the environment. Often the strain associated with wearing the lens leads to debilitating headaches, even if he is not experiencing visual problems. In short, whether he can wear the lens is unpredictable and as a result, Dr. Jesperson states he cannot work as a dentist.

[213] The Defendant argues that Dr. Jesperson has downplayed his ability to wear the lens in his trial testimony and points to the records of Dr. Thakrar and others who have noted that the scleral lens fits well, and the Plaintiff is able to wear it for 5-6 hours/day or sometimes longer.

[214] Dr. Thakrar has been the Plaintiff’s treating ophthalmologist since 2013 and I found her to be an impressive witness. She has a specialty practice for patients with corneal problems who have irregular astigmatism and cannot wear regular contact lenses. She fits specialized contact lenses for such patients.

[215] She testified that she has fitted Dr. Jesperson for a scleral lens which sits entirely on the white portion of his eye and it allows oxygen to pass through it. The incisions from the surgeries have changed the shape of Dr. Jesperson’s cornea and it is not smooth; it makes the fitting of a lens difficult.

[216] Dr. Jesperson described blurry vision, fluctuating vision, double vision, glare and light sensitivity to Dr. Thakrar when he initially attended at her office. She did topographies of his eyes in May 2013, which were marked as exhibits 69 and 70. Dr. Thakrar noted the neovascularization in the incisions in Dr. Jesperson’s left eye. She also noted that some of the incisions passed into the limbus.

[217] Dr. Thakrar testified that the Plaintiff told her that he has dry eye, and this affects his ability to wear the lens, as does the humidity. She agreed that dry eye limits a person’s tolerance for wearing contact lenses and can cause inflammation of the eye. At Dr. Jesperson’s last examination in early 2019, he told her that he had fluctuating vision and felt that he was looking through a haze in his left eye. On examination she noted his vision was slightly lower than it had been on the previous visit.

[218] I accept that Dr. Thakrar has been able to achieve a good fit with the scleral lens, given the Plaintiff’s significant challenges. The evidence about how long he can wear the lens is varied; at times he has told Dr. Thakrar he could wear the lens for 5 hours a day and at other times, he complained of redness and irritation with its use. In 2013 for example, Dr. Jesperson complained regularly that the lens was tight, and it caused redness in his eye.

[219] A fair reading of the notes of Dr. Thakrar along with her testimony does not indicate that Dr. Jesperson has been able to wear the scleral lens for 5-6 hours a day on a regular basis. Rather, while she has been able to expertly fit him with a scleral lens to accommodate his irregular astigmatism, he remains with the dry eye problem which affects his ability to wear the lens for extended periods of time on a regular basis. His dry eye syndrome is something that predated the eye surgeries but has a significant impact on the amount of time he can wear his scleral lens or any contact lens. I accept Dr. Jesperson’s evidence and that of Irena that his use of the scleral lens is unpredictable, and he continues to be plagued with a variety of vision problems, specifically blurriness, fluctuating vision and lack of depth perception.

[220] It is important to note that the scleral lens gives him useful vision, according to the experts and Dr. Thakrar; it is not clear that even with the use of the scleral lens Dr. Jesperson would have vision that would enable him to do the fine work that is necessary for a dentist. This is a distinct issue from the length of time Dr. Jesperson can wear the lens, given his dry eyes.

[221] Dr. Jesperson was 48 years old with two young children when he underwent the first eye surgery. He had a successful, remunerative practice which he enjoyed. I do not find that Dr. Jesperson had any intention of stopping work but for his vision problems.

[222] The long-term disability insurer, RBC, had Dr. Jesperson assessed by the ophthalmologist Dr Breslin in 2011. In his examination, Dr. Breslin found that that in his left eye, Dr. Jesperson had 16 radial incisions from the RK plus an additional 6 transverse incisions as a result of the AK. He noted several of the incisions were vascularized and that wearing the scleral lens would aggravate the blood vessels and cause additional scarring. Dr. Breslin concluded that the Plaintiff did not have the visual requirements to perform the detailed tasks required of a dentist, particularly depth perception, thus he could not work as a dentist. I agree with this opinion.

[223] Dr. Jesperson has severe irregular astigmatism in his left eye and, to a lesser degree, irregular astigmatism in his right eye; his cornea is unstable. These abnormalities have resulted in serious vision problems including a lack of depth perception, problems seeing contrast, blurred vision, and an inability to focus. It is not disputed that these problems cannot be corrected by wearing glasses. Dr. Jesperson uses a scleral lens but he cannot wear it with any predictability because his eye becomes red and irritated and he must remove the lens. He might be able to wear the lens for an hour or he might be able to wear it for 5 or 6 hours. He testified that the lens works best in humid, outdoor conditions and if he is required to use it for fine-focus activities, his eye becomes red almost immediately.

[224] I accept the evidence of Dr. Jesperson and Dr. Fisher that the Plaintiff’s vision difficulties and the uncertainty about how long he can wear the scleral lens on any given day have made it impossible for Dr. Jesperson to continue to practice as a dentist. Patients in a family practice such as Dr. Jesperson had in Pickering expect their dentist to attend to their needs and those of their family members. It would not be acceptable for Dr. Jesperson to commence a procedure and stop part way through because his vision did not permit him to complete it. The type of work dentists do, as described by Dr. Fisher, is fine, detailed work that is done in a small, dark space. A mistake could have serious consequences for the patient. With his difficulties with depth perception and focus, Dr. Jesperson cannot do that work with any confidence.

Is Dr. Jesperson totally unemployable?

[225] The experts testified about the types of work that Dr. Jesperson could do with his vision problems. Both Ms. MacGregor and Mr. Campbell opined that Dr. Jesperson could work as a salesman for a dental supply company on a part-time basis. I do not view the job of a salesman as a realistic one for Dr. Jesperson for several reasons. First, he has no experience in sales and may not have the type of personality that is amenable to this job. Second, as Ms. MacGregor pointed out, he would require an employer who understood that his eye problems and headaches require that he pace himself, which could prove difficult in the area of sales.

[226] Dr. Lerner suggested that the Plaintiff could work part-time as a dentist and hire associates to do the dental work he could not do. I do not find that a feasible alternative. Dr. Jesperson’s practice was in the suburbs and was mostly families. Dr. Lerner conceded that he was not familiar with dental practice in that area. Patients want and expect to be treated by their own dentist. If that person is no longer available, many patients would likely seek a new dentist.

[227] Furthermore, Dr. Jesperson and Dr. Iatropoulos were equal partners, and the Plaintiff was responsible for paying half of the expenses. If he were unable to continue billing in the way that he had historically, his income would diminish. In 2011 prior to selling to Dr. Iatropoulos, when the associate Dr Abdu was working full-time, his income plummeted according to his tax returns.

[228] I do not find that Dr. Jesperson could work as a dentist on a part-time basis. His vision is not good and his ability to wear the scleral lens is unpredictable. I agree with the opinion expressed by Dr. Fisher that working a couple of hours a day as a dentist is not realistic. If his eye was irritated, he would have to stop what he was doing and remove the lens; asking an associate to come in and take over is not reasonable. I agree that patients would not find this acceptable, nor would his partner.

[229] Both vocational specialists agreed that Dr. Jesperson could teach at the college level on a part-time basis, earning in the median range of $26-$33 per hour. In my view, the most reasonable option for the Plaintiff is to work in some capacity as an instructor in the dental field. Perhaps he could do some teaching at the college level or with the professional body. Ms. MacGregor testified that the median for this work would be $33.30/hour for somewhere between 10 and 20 hours a week. In my view, that is a reasonable option for the Plaintiff; it is within his area of expertise and does not require good vision. There is flexibility to it such that it would be appropriate for Dr. Jesperson if he was having difficulty wearing his scleral lens.

[230] Dr. Jesperson is capable of working on a part-time basis perhaps as a college instructor in the dental field and he could have worked in this capacity after he stopped working as a dentist.

What is Dr. Jesperson’s loss of income as a dentist, considering his residual earning capacity?

[231] Ian Wollach (“Wollach”) was called as an expert by the Plaintiffs to quantify the on the loss of income claims, while Larry Andrade (“Andrade”) did so for the defence. Both are qualified experts in the field. Wollach calculated the past loss of income to be $4,301,069 (exhibit 57). He calculated the future loss of income to age 66 to be between $4,293,856 and $4,441,570 (exhibit 59). Wollach included $211,000 as the loss of fair market value of the dental practice. Andrade calculated the loss of income to the date of trial to be $2,465,000 and the future loss to retirement to be $1,582,000 (exhibit 89).

[232] While the methodology used by the two experts is similar, and both assumed a retirement age of 66, other key assumptions are different: whether Dr. Jesperson is capable of working and if so, in what type of work given his visual deficits; when Dr. Jespersen was capable of working on a part time basis; the basis for fee increases had the Plaintiff continued working as a dentist; whether the Plaintiff would have continued working at the same pace until retirement; what effect the new operatory would have had on the Plaintiff’s income; and whether the sale of the business pursuant to the agreement resulted in a loss to the Plaintiff.

[233] Generally, I prefer the approach taken by Andrade and the assumptions made are more reasonable and align more closely with the historical evidence in this case than do those utilized by Wollach.

[234] Wollach used $418,337 as Dr. Jesperson’s average income prior to disability plus an additional $40,000 for the use of the sixth operatory that was being built, for a total of $458,337 He increased this figure based on the fee increases from the ODA while Andrade assumed the revenue would increase consistent with the Consumer Price Index (“CPI”). Wollach applied the ODA increase annually to the income of the practice as opposed to the revenue generated; this is not an appropriate approach because there is no basis for assuming that the expenses of the practice would change in the same manner as the ODA fee increases. In addition, historically, the Plaintiff’s revenue did not increase consistently in accordance with the ODA increases. I prefer the use of the CPI for the increase in the Plaintiff’s income in the future, in accordance with the calculations of Andrade.

[235] Andrade assumed that Dr. Jesperson had a residual earning capacity of approximately $24,000 per annum commencing in 2009 based on his working 15 hours a week as an instructor earning $34.62 per hour. Wollach assumes no residual earning power until June 30, 2019 and thereafter based on earnings from working part-time as a college instructor working 48 weeks per year earning $19,669 per year.

[236] After the keratectomy by Dr. Slomovic in July 2009, the Plaintiff struggled with his vision and the use of custom contact lenses to accommodate his astigmatism. While Dr. Jesperson could not work as a dentist after 2009, I do not find that he was unemployable. I accept the opinions of the vocational specialists, both of whom agreed he could work on a part time basis in the dental field, either selling equipment or teaching. Both of those occupations provide flexibility for Dr. Jesperson. As an instructor, the Plaintiff would not be teaching for a full day; he could teach classes at times that enabled him to rest. I agree with the comment of Mr. Campbell that a college would likely be more accommodating in terms of Dr. Jesperson’s medical issues and in my view, it is the most suitable occupation for the Plaintiff.

[237] I accept the evidence of MacGregor and Campbell, who agree that the Plaintiff could work teaching 3-4 hours per day, or 10-20 hours/week. Both Wollach and Andrade assumed 15 hours of work/week, 48 weeks per year. The median hourly rate used by Andrade in his calculations, $34.62 is slightly higher than MacGregor’s of $33.30.

[238] Andrade calculated the residual earning capacity from 2009 to the time of trial based on these assumptions to be $248,706. Assuming he worked as an instructor to age 66, the present value of the projected future residual earning capacity is $224,055.

[239] Wollach did his calculations assuming that the Plaintiff would never return to work in any capacity or at best, that he was only capable of returning to work on a part time basis in July 2019. There is no evidence that Dr. Jesperson is or was totally incapable of working until July 2019. It is unclear to me on what basis Wollach assumed the Plaintiff was able to return to work on a part time basis only in July 2019; none of the experts who testified relied on that date and I do not accept it as reasonable.

[240] While I agree that Dr. Jesperson was struggling emotionally after he stopped working in 2009, there is no evidence that he was clinically depressed to the point of being unable to work in any fashion. He was not taking any treatment for his emotional issues; in fact, the psychiatrist who assessed him in October 2009, Dr. Isenberg, noted he had no symptoms of depression, and had excellent concentration and energy. He encouraged him to keep busy and did not recommend any treatment. It might well have been of some benefit to Dr. Jesperson to have returned to work in a different capacity in 2009. In my view, he was capable of working on a part-time basis, perhaps 15 hours a week, teaching at the college level by September 2009 when the school term began.

[241] Wollach included in his damage calculation a loss of the fair market value of Dr. Jesperson’s dental practice which he calculated to be $211,000 (exhibit 61). This was premised on the valuation of $700,000 contained in the agreement as not being a fair price for the practice. Andrade did not include a loss of the fair market value in his calculations.

[242] I do not accept the loss of the fair market value of the dental practice as a reasonable damage flowing from the Plaintiff’s inability to work as a dentist. First, Wollach was not qualified as a business evaluator and he agreed that he did not have that designation. I am not persuaded that his calculation of the value of the practice at $911,000 is accurate (exhibit 61). There was no expert evidence at trial on this point. In arriving at his figure of the value of the practice, Wollach relied on a letter of opinion from an author who did not testify at trial. Wollach added in anticipated revenues from the newly constructed operatory without supporting documentation. I am simply not persuaded the methodology is accurate.

[243] As well, I agree with the opinion of Andrade that to include the loss of the fair market value of the practice results in double recovery because it is captured in the past and future economic loss numbers. The figure of $700,000 as the value of the practice to be paid was a number the Plaintiff agreed to in the contract (exhibit 3 tab 6). That agreement was updated on June 29, 2009, just before Dr. Jesperson stopped working. Obviously, he felt that was a fair figure on which to value the dental practice and one he was prepared to accept in the event he became disabled. I see no basis to attribute a higher value to the practice in these circumstances.

[244] Wollach added back the renovation expenses for the new operatory which he totalled to $67,000. However, there was no evidence at trial concerning the amount of these expenses, what they were for, or how this money was treated for accounting purposes. Wollach simply said he got the information on the renovation expenses from Irena and he included them as an add-in for his calculations. It is not clear if this approach is correct, but if it is, further evidence and explanations of these amounts was necessary.

[245] Wollach made assumptions about the quantum of revenue that would be generated by the new room. He assumed net income to Dr. Jesperson from the extra operatory of $40,000 and assumed a 60-70% utilization rate. There is no evidence to support these numbers related to the 6th operatory. He assumed an $88,000 increase in revenue from the sixth operatory, but there was no evidence at trial concerning the new room, how it was used, or the additional revenue generated, so this is speculation on the part of Wollach.

[246] I was advised Dr. Jesperson’s partner Dr. Iatropoulos would testify at the trial, but he did not. No reason was given for his failure to attend as a witness. He could have provided evidence about the dental practice after Dr. Jesperson left, including the new operatory, and explained how fees and revenues increased over time. While I do not draw an adverse inference from the failure of Dr. Iatropoulos to give evidence at trial, as requested by the defence, he could have provided clarity on some of the issues bearing on the loss of income claim. The paucity of evidence concerning what transpired with the dental practice since 2009 makes it difficult for the court to calculate the income loss with any precision. It remains unclear why Dr. Iatropoulos did not testify at the trial; Dr. Jesperson confirmed they are friends.

[247] For the reasons articulated, I find the Andrade approach more reasonable and in accordance with the evidence. I find that Dr. Jesperson cannot work as a dentist and has been unable to since he ceased working in July 2009 due to his vision deficits and other problems arising from his inability to see properly. I find he has a residual earning capacity working on a part time basis as an instructor at a college and he could have worked after ceasing to practice as a dentist. The loss of income to the date of trial as calculated by Andrade is $2,958,000. At trial, the experts agreed that the business overhead insurance benefits which the Plaintiff received from 2009-2011 in the sum of $493,000 ought to be deducted from any past loss of income award. I find that the past loss of income, on a net basis, is $2,465,000.

[248] Andrade assumed as the Plaintiff moved towards retirement, after age 55, his level of work activity would decrease in accordance with the statistics, and this would be reflected in his income. Wollach did not do this on the basis that the Plaintiff had already reduced his working hours and would not likely do so again. Dr. Jesperson had decreased his hours twice prior to his eye surgeries, in 2002 and then again in 2007, so he was only working 4 days a week or 31 hours in 1994. Andrade relied on the information from Statistics Canada which indicates that 37% of male dentists over age 55 work full time (exhibit 91). That same chart indicates that in the age group 25-54, only 44% of dentists work full time, which indicates only a 7% change as dentists age. Andrade conceded that compared to other dentists, Dr. Jesperson earned considerably more than the statistical average of $156,000 per annum.

[249] Given that Dr. Jesperson had already reduced his working hours on 2 occasions by the age of 48, combined with the evidence that the practice was growing, I am not persuaded that Dr. Jesperson would have followed the statistical trend and further reduced his working hours after the age of 55. To do so and reduce Dr. Jesperson’s revenue by 4% per year would result in earnings of approximately $150,000 by retirement age, which accords with the statistics concerning what dentists in Ontario in the age range of 55-65 earn. However, I do not find that to be a reasonable approach, given the Plaintiff’s historical earnings of approximately $400,000 compared to the statistical average. I therefore decline to make this reduction. Andrade calculated the effect of the reduced activity adjustment to be $1,009,161 (exhibit 93). I would add that to the future loss of income calculation of Andrade and fix the number at $2,591,161.

General Damages

[250] As a result of the RK surgeries and the AK surgery, the Plaintiff has been left with weak corneas, a severe irregular astigmatism in his left eye that cannot be corrected, an irregular astigmatism in his right eye, and neovascularization of several incisions in his eyes. As a result, he experiences blurred vision, glare, lack of depth perception and problems focusing. He had dry eyes before these procedures and he cannot wear the scleral lens for extended periods of time; he experiences eye strain and headaches and fatigue. He has attended upon a myriad of specialists in an effort to improve his sight. He has had to have countless lens fittings to try and find a lens that works. He can no longer practice as a dentist and had to leave a successful career while he was a young man. I assess Dr. Jesperson’s general damages at $150,000, an amount I consider to be fair and reasonable in the circumstances.

Other Claims

[251] He claims out of pocket expenses of $18,585 (exhibit 13) which are comprised of receipts for glasses, lenses, Avastin injections from Dr. Slomovic and fittings for various lenses. They are all proper and not the subject of dispute. The OHIP subrogated interest is $3,088 comprised of the services provided for Dr. Jesperson’s treatment for his eye issues.

Claims of Irena Jesperson

[252] Section 61(2)(d) of the Family Law Act permits a relative of an injured person to claim “where as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services…”

[253] Irena asserts a past loss of income claim assuming a return to work on July 2, 2009 until August 31, 2013 based on the salary of a vice-president of finance, which is the title Irena had at her last place of employment in 2001, the Heart and Stroke Foundation. Wollach testified that he used the low end of the range applicable to Vice Presidents of Finance in his calculations and adjusted the numbers for inflation. Using $115,051 per year, Wollach quantifies the past loss of income to be $395,861.

[254] Irena qualified as a chartered accountant in 1986 and worked in that capacity at various organizations until 2001 when she decided to take time off work to spend time with her young sons, who were 9 and 7 years old. She testified that she planned to return to work in 2008 when the boys were old enough to drive.

[255] Irena acknowledged that she made no applications for employment after leaving the workforce in 2001. Following her husband’s eye surgeries, she accompanied him to the various consultations with eye specialists. When he became unable to return to work as a dentist in 2009, Irena testified that he became depressed and she was afraid to leave him alone. He was suicidal and she felt she had to stay with him to provide emotional support and to be available to him. After he sold the practice in 2011, he spent much of his time in bed. She was concerned that if she returned to work, it would deepen his feelings of uselessness.

[256] After he resigned from the college in 2012, his depression worsened. In 2013 when a cyst was discovered on his right eye, he was terrified of losing his vision and Irena was concerned he might kill himself. She described the years 2008-2012 as “years of hell”. During this period, she did not consider getting someone to help her husband, so she could return to work; she felt her role was to be with him. She made no effort to return to the workforce.

[257] When Irena stopped working in 2001, she may have had a plan to return to work in 2008, but she did not take any steps towards this goal. In 2008, when her husband was working full time, she did not update her resume, arrange any meetings with potential employers or do anything to facilitate a return to work. She never applied for a job. If she was serious about returning to work as an accountant after an absence of 7 years, I would have expected to have heard evidence about her efforts to get back to work, or the plans she had to do so. She had been out of the workforce for a significant period of time.

[258] In my view, there is a paucity of medical evidence in the period of time after Dr. Jesperson ceased working that supports her view that his mental health was so precarious that she needed to be with him at all times. Irena may have preferred to stay with her husband in the years after he stopped working, but there was no evidence at trial that it was necessary for her to do so and that as a result, she was prevented from returning to work as an accountant.

[259] Dr. Susman, the Plaintiff’s family doctor, made a referral to Dr. Isenberg, a psychiatrist in August 2009. Dr. Isenberg’s note of October 14, 2009 states, “He presents with few if any symptoms of depression. He is sleeping well, his appetite is stable, his concentration is excellent, his levels of energy are good and his patience is good. He has no phobias, he has no obsessive-compulsive features and there is no evidence of any psychosis.” Dr. Isenberg did not make a diagnosis of depression; rather he felt Dr. Jesperson had an adjustment reaction due to his eye problems which prevented him from working as a dentist. He did not prescribe medication, nor did he feel the Plaintiff needed treatment. Dr. Jesperson did not see him again nor did he seek out any other treatment such as counselling.

[260] I accept that Dr. Jesperson struggled and there were times when he felt depressed as a result of his inability to work as a dentist after 2009 but there is no evidence he was clinically depressed or suicidal or that his condition required Irena to stay with him at all times, which prevented her from returning to work, if that was her goal.

[261] Dr. Jesperson described Irena to Dr. Isenberg in October 2009 as a “retired accountant.” Perhaps that is an accurate description of her status at that time. I am not satisfied that her husband’s vision difficulties prevented her from returning to work or pursuing her career.

[262] While the FLA permits recovery for income lost because a person was providing nursing, housekeeping or other services to an injured person, it is not clear to me what “other services” Irena was providing to her husband during the years 2009-2013 to entitle her to make such a claim. Counsel for the Plaintiffs submits that it would be appropriate to value Irena’s services based on the market cost of a personal support worker, at $25 per hour. I reject this submission because there is no evidence Irena was providing caregiver services to her husband and more importantly, there is absolutely no medical evidence that Dr. Jesperson required the services of a caregiver or personal support worker.

[263] If Irena decided to stay with her husband as an emotional support, that is understandable. Once it became clear he could not return to work as a dentist, Irena may have decided to abandon any plans to return to work so the two of them could spend time together. I am not persuaded that as a result of her husband’s vision issues Irena could not return to work and as a result, she suffered loss of income.

[264] Irena asserts a claim for loss of care, guidance and companionship pursuant to the FLA. This provision entitles certain relatives of injured persons to make claims as a result of their losses, for things they would have received but for the person’s injuries. It is important to note that assessments of claims for loss of care, guidance and companionship must be done in an objective manner, without emotion or sympathy: Ready v. McLeod, (1986), 54 O.R. (2d) 661. These claims recognize the changes in the lives of family members when a person dies or is injured and suffers serious consequences. Their assessment is based on a number of factors including the nature of the relationship, the changes in it as a result of the injuries and the services that must be provided.

[265] In the instant case, in the time after Dr. Jesperson stopped working and was struggling emotionally, I accept that Irena had to support her husband and encourage him. There is no evidence she provided caregiving services to him or that there were things she had to assume doing because he was unable to perform them. I also accept that as a result of Dr. Jesperson’s vision problems and the resultant sale of his dental practice, her life has changed. They spend the winters in Florida because Dr. Jesperson’s eyes feel better in humid weather. They walk, cycle, play tennis and enjoy running together both in Florida and in Ontario during the summer. The enjoy spending time at the cottage as well. Her evidence was clear that their relationship remains strong, they are very close and they continue to do various activities together. Taking into account all of the evidence, I assess the loss of care, guidance and companionship claim of Irena at $40,000.

(8) Did the Plaintiffs mitigate their damages?

[266] The law is clear that an injured Plaintiff must take all reasonable steps to mitigate his or her losses: British Westinghouse Electric Manufacturing Co., Ltd. v. Underground Electric Rys. Co. of London Ltd., [1912] A.C. 673 (H.L.). If a Defendant argues the Plaintiff failed to mitigate his or her damages, the burden to satisfy the court on a balance of probabilities rests with the Defendant. The Supreme Court of Canada decision, Janiak v. Ippolito, [1985] 1 S.C.R. 146, is instructive on the issue of failure to mitigate damages in personal injury cases. Briefly put, a Plaintiff has an obligation to mitigate damages suffered by taking reasonable steps to pursue medical treatment options and rehabilitation that could result in improvement. That standard to be applied is that of a reasonable person. If a Plaintiff acts unreasonably in not pursuing reasonable treatment options, the results of that decision are not visited upon the negligent Defendant. Put another way, “a plaintiff cannot recover from the defendant damages which he himself could have avoided by the taking of reasonable steps.” Janiak at p. 167.

[267] Janiak v. Ippolito sets out a two-step test that must be undertaken to determine if a Plaintiff has failed to mitigate damages suffered. First, the Court must decide whether the Plaintiff was unreasonable in refusing to undertake the recommended treatment; this is an objective test, what a reasonable person would do in the circumstances. The Court considers such things as whether a treating practitioner recommended the treatment, the degree of risk from the treatment, potential benefits, and the consequences of refusing it.

[268] The second step is to decide whether the failure to undertake the treatment impacts the damages and thus, they ought to be reduced. The Defendant need not prove that it is certain the proposed treatment would have resulted in a benefit to the Plaintiff, but rather, the evidence must persuade the Court that the refused treatment held a real and substantial possibility of improvement or benefit to the Plaintiff: Bhatti v. Ethier, 2018 BCSC 1779.

[269] Where there are differing medical opinions on proposed treatment, the Court has stated that as long as a Plaintiff follows one of the recommended courses of treatment, he or she cannot be deemed to have acted unreasonably: Janiak, at para 29.

[270] In the instant case, the Defendant argues that the Plaintiff has failed to mitigate his damages by not pursuing a toric piggyback lens implant or topo-guided PRK as described by Dr. Holland. Had he done so, it is submitted, he could have returned to practicing dentistry. The Defendant asserts that a reduction in the range of 50-75% should be made on the loss of income claims as well as the general damages for the failure to undertake the lens implant surgery or the topo-guided PRK. Had either of these options been undertaken, it is likely the Plaintiff would have been able to return to working as a dentist.

[271] Dr. Jesperson without a doubt has sought out opinions and recommendations from a host of ophthalmologists in Ontario as well as in the United States. He has spoken to an eye specialist in Belgium. The records of the various ophthalmologists are filed as exhibit 2. The Plaintiff has asked these specialists whether there is any treatment to improve his vision. At trial, the possibility of improved vision through the piggyback IOL was the subject of expert evidence.

[272] Dr. Slomovic, the Plaintiff’s treating ophthalmologist and a specialist in corneal disease, in his report of October 4, 2011 stated “…as long as we are able to maintain a significantly improved visual function with his scleral contact lens, and keep the corneal vessels in check, then I would not be inclined to proceed with further surgery. The piggyback toric intraocular lens which Dr. Breslin refers to can have serious side effects. I have used this lens in the past for a patient with high astigmatism following a corneal transplant and on two separate occasions the intraocular lens rotated requiring surgical repositioning. Following the second repositioning I sutured the lens in place and despite uneventful surgery the patient went on to develop reduced vision secondary to macula edema. I would also be very reluctant to proceed with corneal transplantation in a patient whose visual function can be optimized with a scleral contact lens. Should Dr. Jesperson’s condition change and the vessels become more aggressive, or not controllable, with the above management then we will be forced to look for alternative treatment modalities and I would consider a piggyback intraocular lens or a transplant as per Dr. Breslin’s recommendations.”

[273] Dr. Salz testified that using the scleral contact lens is the best option for the Plaintiff. He would not recommend the piggyback lens surgery because Dr. Jesperson’s cornea is not stable due to the intersecting incisions and he has fluctuating refractions. Further, because he has neovascularization along the incisions, there are enhanced risks; he would not do the surgery. He believes doing an implant would be exceedingly difficult because Dr. Jesperson has 18 incisions in each eye and some are intersecting and some are vascularized, making for risky surgery.

[274] Dr. Agapitos does not recommend surgery to put in place a piggyback intraocular lens because Dr. Jesperson does not have a stable cornea. Because the Plaintiff has so many incisions, some of which have not healed well, Dr. Agapitos stated doing further surgery is very risky because the incisions might open up or there could be a hemorrhage during the surgery which would result in a total loss of vision in that eye. Dr. Agapitos would only recommend a corneal transplant as a final option. There is a risk of rejection of the transplant, which Dr. Agapitos estimated at between 30 and 40 percent. Topo-guided PRK, which is recommended by Dr. Holland, is not a good option for the Plaintiff according to Dr. Agapitos. He has done many of these procedures and often patients develop haze or corneal scarring afterwards and since the Plaintiff already has corneal scarring, this would be exceedingly risky.

[275] Dr. Agapitos agrees with the opinion of Dr. Slomovic to continue with the use of the scleral lens wearing it as much as his dry eye will tolerate. If the neovascularization in the eye worsens, Dr. Agapitos stated the Plaintiff will have to reduce the amount of time he wears the lens.

[276] Dr. O’Brien, from the Bascom Palmer Eye Institute in Miami, Florida assessed the Plaintiff in February 2016. He noted the scleral contact lens provided the best possible visual acuity but caused significant discomfort. His note states, “Reviewed treatment options of collagen cross-linking and corneal transplantation. His best option at this time continues to be scleral contact lens wear as tolerated. Do not recommend a piggy back contact lens at this time, particularly with fluctuating refraction in both eyes.” (Exhibit 2, tab 21).

[277] Dr. Breslin is an ophthalmologist who assessed the Plaintiff in 2011 at the request of RBC for the disability insurer. He suggested the Plaintiff investigate other types of lenses, not just scleral. He noted the toric piggyback intraocular lens was an option “assuming his refraction is stable.”

[278] Dr. Holland testified that there are 3 treatment options for Dr. Jesperson: insertion of a piggyback intraocular lens, topography-guided PRK or a corneal transplant. Dr. Holland believes that the piggyback lens could result in a significant improvement in his vision and he does not believe it is risky because the topography of his left eye has remained stable. He described it as a “reasonable” option which could result in improvement in the vision in his left eye.

[279] Dr. Holland also thinks the topography-guided PRK is a valid option. At his clinic, this procedure has been done on approximately 120 eyes which had undergone prior RK surgery and it was helpful in most of the patients, resulting in improvement in their vision. He believes this procedure would result in eradication of a great deal of the irregular astigmatism.

[280] Dr. Holland agreed that a corneal transplant was the last option and the risks associated with it are significantly higher than with the other procedures.

[281] Dr. Jesperson has canvassed his treatment options with a variety of specialists and asked for recommendations. He has discussed the piggyback lens option. His treating ophthalmologist Dr. Slomovic advised against having that procedure and recommended continuing with the scleral lens. Dr. Salz, Dr. O’Brien, and Dr. Agapitos concurred with that recommendation. His family doctor sent the Plaintiff to Dr. Rootman in 2009 for an opinion about further treatment. Dr. Rootman suggested proceeding with the piggyback lens surgery; however, after speaking with a friend in Europe where this procedure was being done, Dr. Jesperson discussed this option with Dr. Slomovic, who recommended against it.

[282] While Dr. Holland testified that he thought Dr. Jesperson ought to proceed with the piggyback lens surgery, he conceded that it is important to have stable refractions when going ahead with surgery, which the Plaintiff did not have. As well, he agreed that patients with moderately severe irregular astigmatism often do not do well with surgery.

[283] That Dr. Jesperson has an irregular astigmatism is not in dispute; however, the various ophthalmologists have different views on the degree of irregularity. Dr. Waring described it as a moderately severe irregular astigmatism. Dr. O’Brien, Dr. Rootman and Dr. Salz noted it as a significant irregular astigmatism. Dr. Agapitos described the astigmatism as severe. Dr. Holland testified he did not think the irregular component of the astigmatism was “excessive”. While Dr. Holland testified that the amount of irregular astigmatism would not be an impediment to getting a good result from the piggyback lens surgery, he conceded his view was in the minority.

[284] Dr. Jesperson has undergone several surgical procedures with his eyes. He has been left with a smaller than normal optical zone, incisions that intersect, neovascularization of several of the incisions, wound gape, incisions that go into the limbus, and severe irregular astigmatism in the left eye, some irregular astigmatism in the right eye. He does not have stable refraction.

[285] Dr. Salz testified there are really no safe treatment options for Dr. Jesperson. One of the serious concerns is that the various incisions could open up making surgery very difficult. As well, he has dry eyes. Dr. Holland agreed that due to his corneal irregularity, this surgery might be of limited efficacy. There is a risk of loss of vision with further surgery, according to Dr. Salz, because an infection could result in the loss of the eye.

[286] Dr. Jesperson is a good, compliant patient; he follows the advice of his treating doctors. He has appropriately sought out treatment from leading practitioners with expertise in corneal issues. After the July 2009 keratectomy by Dr. Slomovic, the Plaintiff was fitted for contact lenses by expert optometrists. He has done what they told him to do. In using the scleral lens, he is following the advice and recommendations of Dr. Slomovic, his treating ophthalmologist and of Dr. Thakrar, his treating optometrist, both of whom specialize in patients with irregular astigmatism. This course is supported by the experts Dr. Salz, and Dr. Agapitos.

[287] I attach significant weight to the opinion of Dr. O’Brien, who all of the experts agreed was a highly regarded refractive surgeon. The Plaintiff sought him out at his clinic in Florida; he is not an expert hired for the lawsuit. His notes indicate he saw the Plaintiff in 2016 and Dr. Jesperson reported that he had poor vision in his left eye which was “better with scleral lens”. However, he reported difficulty wearing the lens because of significant discomfort. Dr. Jesperson discussed treatment options with Dr. O’Brien, specifically the piggyback IOL. Dr. O’Brien did not recommend the Plaintiff undertake that procedure because of his fluctuating refraction in both eyes.

[288] Dr. Holland has never examined Dr. Jesperson’s eyes; he was retained to provide an opinion on the issues in this lawsuit. I found him to be a credible witness and fair in his evidence. He conceded that it is important for patients considering the piggyback lens procedure to have stable refractions; he relied on the refractions done by Dr. Rootman, and did not consider those of Drs. Slomovic, O’Brien, Waring and Agapitos, all of whom he agreed were skilled ophthalmologists and who found unstable refractions. Furthermore, he was not aware that the Plaintiff’s treating ophthalmologist, Dr. Slomovic, wrote a letter in 2011 stating he would not recommend the piggyback lens surgery due to the serious side effects. Dr. Holland apparently did not read or at least he did not recall what is an important opinion on the piggyback lens procedure. When this information was put to him in cross examination, Dr. Holland agreed that Dr. Jespersons’ case was a complex one and it was reasonable for a patient to rely on the advice of his corneal specialist. In my view, that affects significantly the weight to be attributed to the opinion of Dr. Holland on the propriety of the piggyback IOL.

[289] While Dr. Holland did not agree with the other specialists that the Plaintiff has significant irregular astigmatism, he did concede that the amount of irregular astigmatism affects whether the piggyback IOL is an appropriate treatment option. Furthermore, Dr. Holland agreed that moderately severe irregular astigmatism is a poor prognostic factor for the piggyback IOL.

[290] In my view, this is a reasonable way to proceed. The piggyback intraocular lens is an option, but it carries serious risks and Dr. Holland did not say that this surgery will return the Plaintiff to better vision than he currently has with the scleral lens.

[291] Topography-guided PRK is performed with a laser and is a relatively new procedure. Dr. Agapitos testified he has done this surgery but cautioned that patients may develop corneal scarring or experience haze afterwards. Dr. Holland was the only ophthalmologist who suggested topo-guided PRK ought to be considered as a treatment option for Dr. Jesperson.

[292] Dr. Salz did not feel the topo-guided PRK was appropriate for the Plaintiff because he has neovascularization of the incisions so using the laser would cause bleeding and perhaps further damage. Dr. Agapitos did not recommend this procedure because of the risks and also the fact that Dr. Jesperson’s vision is not correctable to a good level and his refraction is not stable.

[293] In my view, the topo-guided PRK is not an option for Dr. Jesperson. It requires a stable cornea, which the Plaintiff does not have. None of the various ophthalmologists Dr. Jesperson has been examined by have suggested this as an option for him to improve his vision. Dr. Holland stands alone in his recommendation of this procedure.

[294] All of the specialists agreed that a corneal transplant is the last resort, to be done if Dr. Jesperson’s vision deteriorates or is he is unable to use the scleral lens to achieve good vision. This is not an easy surgery and given the number of incisions Dr. Jesperson has on his eyes, it is a risky surgery which could result in a loss of vision in the eye. There is a possibility that the transplant will be rejected; Dr. Agapitos thought the rejection rate was between thirty and forty percent. Some patients must wear a contact lens after the corneal transplant surgery. No-one suggested at trial that Dr. Jesperson ought to proceed with a corneal transplant at the present time.

[295] I am not persuaded that that the Defendant has discharged its onus to prove failure to mitigate based on the failure of the Plaintiff to proceed with the piggyback intraocular lens procedure or the topo-guided PRK. Dr. Jesperson has an unstable cornea and eyes with numerous incisions, some which are intersecting and vascularized. It would be a technically difficult surgery, fraught with risks, and none of the experts testified the results were reliable. Even Dr. Holland would go no further than to say if successful the surgery “could” result in improved vision in his left eye.

[296] I do not find that piggyback IOL has a real and substantial possibility of better vision for the Plaintiff or that his refusal to proceed with this surgery or with the topo-guided PRK constitutes a failure to mitigate his damages.

Punitive Damages

[297] Counsel for the Plaintiffs submits that the conduct of Dr. Karas could form the basis for a punitive damage claim. Counsel notes that the Defendant was an expert at RK surgery and had performed thousands of these procedures by 1994. Exhibit 72 was the marker used to make an impression for a 3 mm clear zone during the RK. If Dr. Karas used the marker and followed the lines, he could not have made a clear zone that was smaller than 3 mm without intentionally doing so. Furthermore, counsel notes that when Dr. Karas performed the AK surgery, he crossed the incisions when all of the experts agreed this was not being done in 1995 and it was well known it was not indicated. The Plaintiffs argue that Dr. Karas intentionally created a small optical zone to achieve better results since Dr. Jespersen was a severe myopic.

[298] Counsel for the Defendant submits that punitive damages are reserved for cases of egregious, malicious and high-handed conduct and there is absolutely no evidence that Dr. Karas intentionally caused the injuries of which the Plaintiff complains.

[299] Punitive damages are awarded when a Defendant’s conduct is “so malicious, oppressive and high-handed that it offends the court’s sense of decency.” Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 196. The goal of an award of punitive damages is punishment and deterrence. To justify an award of punitive damages, conduct must be “a marked departure from ordinary standards of decent behaviour.” Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, at para. 36.

[300] It is beyond dispute that the clear zone from the RK surgeries is less than 3mm. When Dr. Karas was asked if he intentionally created a smaller clear zone in order to increase the effects of the RK, he adamantly denied it. I accept his evidence on this point. Similarly, his crossing of the AK incisions with the RK incisions was negligent but I do not find it was intentional. Dr. Karas stated that this technique was being done in 1999 and was seemingly unaware of the fact that it had been abandoned because of complications associated with it.

[301] Some of Dr. Karas’s testimony was curious. Without a doubt, he was an experienced refractive surgeon at the time of these events. However, for reasons which are not clear, he seemed to march to the beat of his own drummer, as opposed to following mainstream medicine. Perhaps he believed he knew more and had more experience than other ophthalmologists; perhaps he felt that his methods of treatment and surgery were superior to those followed by the majority of eye surgeons at the time; perhaps he believed he was a superior surgeon.

[302] At trial, some of his evidence on the standard of care and causation issues contradicted the opinions of all of the experts, including Dr. Holland who was called by the defence.

[303] While I have found Dr. Karas was negligent, I do not find that he acted with malice in his treatment of Dr. Jesperson. I am not persuaded that his conduct justifies an award of punitive damages.

(9) Deductibility of long-term disability benefits received by the Plaintiff

[304] Dr. Jesperson had two policies of insurance issued by Paul Revere Life Insurance company, which was later purchased by RBC Life Insurance Company: one policy provided for monthly payments upon the insured being totally disabled (“the disability policy”); and another provided for disability payments in smaller amounts upon the insured being totally disabled (“the retirement protection policy”).

[305] The Plaintiff purchased these policies soon after graduating as a dentist, in approximately 1988, and he paid the premiums personally in after-tax dollars. Dr. Jesperson applied for and received payments pursuant to the disability policy which initially were in the sum of $10,250 per month and increased annually from September 1, 2009 to November 30, 2016. The total paid was $1,148,582.98. He also received monthly payments of $1,000 from October 1, 2009 to November 30, 2016 from the retirement protection policy for a total sum of $86,000. He settled all future claims from these two policies for the sum of $1,630,000 on December 6, 2016 (Exhibit 102). RBC is not pursuing a subrogated claim in this action.

Positions of the Parties

[306] Counsel for the Plaintiffs argues that the benefits that were received do not constitute indemnity payments for loss of income but rather these are non-indemnity policies which should not be deducted from any damage award. The Court must examine the terms of the policies to determine if they are contracts of indemnity: London Life Insurance Co. v. Raitsinis, 72 O.R. (2d) 278 .

[307] Mr. Sacks submits that the RBC policies have the classic features of non-indemnity policies: they are contracts which pay benefits upon the occurrence of a certain event, specifically, total disability. An insured does not have to be employed or be able to demonstrate financial losses in order to receive the benefits. Once Dr. Jesperson met the total disability test articulated in the policy, he was entitled to the benefits.

[308] RBC did not demand the Plaintiff provide proof of economic loss suffered nor did the policy require any deduction of benefits received from other sources. Under the policy, the Plaintiff would be free to work in some other field and earn income and he would still be entitled to the benefits under the disability policy. Counsel submits that the fact that there is no set off means that the policies are not in the nature of indemnity policies.

[309] Counsel for the Defendant submits that the amounts received pursuant to these policies of insurance are indemnity payments which compensate Dr. Jesperson for his pecuniary losses because of his inability to work as a dentist. Relying on the dissenting opinion of McLachlin J. (as she then was) in Cunningham v. Wheeler, [1994] 1 SCR 359 at 369 counsel argues that the purpose of awarding damages in negligence lawsuits is to restore the Plaintiff to the position they would have been in had the negligence not occurred, but “double recovery is not permitted.”

[310] While counsel acknowledges the jurisprudence specifically notes the private insurance exception to the general rule against double recovery, he submits that there are exceptions to this rule articulated by McLachlin J. in Cunningham, specifically indemnity payments which compensate an insured for pecuniary losses. The payments Dr. Jesperson received from the RBC policies are indemnity payments and in accordance with the reasoning in Cunningham, Dr. Jesperson ought not to receive more than his actual losses as a result of this lawsuit. The measure of his damages is his actual losses and no more. If the benefits received are not deducted there will be double recovery which is unfair and contrary to the established laws dealing with tort damages.

[311] The defence argues the characteristics of the policies make it clear that it was the intention of the parties to provide replacement income to Dr. Jesperson in the event he was unable to work and met the disability test under the policy. When he purchased the policies, he was required to furnish proof of his income and to update that information from time to time.

[312] A negligent defendant should pay the actual measure of the Plaintiff’s losses related to the negligence. If the benefits received are not deducted, there is clearly an overpayment which results in the Plaintiff being in a better position than prior to the negligent act: “The measure of tort damages is what the Plaintiff has lost, not what the defendant should be compelled to pay as the price of his negligence.” Cunningham, at pp. 384–5.

Analysis

[313] As noted by Cromwell J. in Waterman v. IBM Canada Ltd., 2013 SCC 70 at para. 3, the issue of whether or not a benefit received ought to be deducted from tort damages is a vexing and difficult one. The factor driving whether benefits will be deducted is the determination of whether they were paid pursuant to an indemnification policy or a non-indemnification policy. McLachlin J. noted, in Cunningham at pp. 393–393: “Any benefits which indemnify the Plaintiff against wage loss must be brought into account in a damage claim for that loss against a tortfeasor because, to the extent the plaintiff has been indemnified, no loss arises. On the other hand, benefits which are not in the nature of indemnification for the loss claimed against the tortfeasor need not be brought into account.”

[314] In her dissenting opinion in Cunningham, McLachlin J. differentiated between indemnity and non-indemnity payments as follows, at p. 371: “An indemnity payment is one which is intended to compensate the insured in whole or in part for a pecuniary loss….A non-indemnity payment is a payment is a payment of a previously determined amount upon proof of a specified event, whether or not there has been pecuniary loss.”

[315] Cromwell J.’s analysis in Waterman is helpful. The Defendant refers to the part of the decision where the private insurance exception is discussed. Cromwell noted that if a benefit is close to an indemnity for loss of income, there is a good argument for deduction while generally, a benefit will not be deducted if it is not an indemnity for the loss caused by the negligence and the Plaintiff has contributed to obtain the entitlement to it.

[316] After reviewing the case law in the area, he stated, “I conclude from this review that whether the benefit is in the nature of an indemnity for the loss caused by the defendants’ breach and whether the plaintiff has directly or indirectly paid for the benefit have been important explanations of why particular benefits fall, or do not fall, within the private insurance exception. The Court has been sharply and closely divided on the issue of the deduction for an indemnity benefit to which the plaintiff has contributed. However, there is no decision of the Court of which I am aware that has required deduction of a non-indemnity benefit to which the plaintiff has contributed…”

[317] In Waterman, for the majority, Cromwell J. concluded the pension benefits the Plaintiff received after his dismissal from his job were not an indemnity for wage loss and therefore ought not to be deducted. At paragraph 97 he sets out the various factors that are significant when considering this issue: intention of the parties; broader policy considerations; whether the benefits are reduced by other benefits or income received; and whether the Plaintiff can receive both pension benefits and income from employment.

[318] In the instant case, there is no issue that the Plaintiff paid the policy premiums or that the receipt of the benefits was causally related to the alleged negligence of the Defendant. In order to decide the issue of deductibility, a determination must be made as to whether or not the payments from the RBC policy constitute indemnity payments or non-indemnity payments.

[319] In Gibson v. Sun Life Assurance Co. of Canada, 45 O.R. (2d) 326, the court examined the differences between contracts of indemnity and non-indemnity in a case where a plaintiff received disability payments from a group policy through her work. The analysis in Gibson is helpful in determining whether a policy is a contract of indemnity or one of non-indemnity. The Court stated,

The all-important question to be decided, therefore, is whether the group policy here concerned is a contract of indemnity. Such a contract is one in which the insurer binds itself to pay money to the insured upon proof of an uncertain event occurring, and upon further proof that as a result of that event the insured has suffered pecuniary loss. In such a case the payment of the insurance money is intended to indemnify the insured, wholly or partly, for his loss. It is inherent in the concept of insurance that most insurance contracts are intended to indemnify the insured for loss sustained and are therefore contracts of indemnity. There are, however, important classes of insurance in which, under the contract, no proof of loss is required to entitle the insured to payment of insurance money upon the occurrence of an event. These principally are, as broadly stated in the textbooks and some of the authorities, contracts of life insurance and contract of “accident or sickness insurance”. In such cases where proof of loss suffered by the insured is not a condition of payment, the contract is not one of indemnity; this is because the liability of the insurer to pay a sum or sums fixed by the policy arises solely on the occurrence of the event irrespective of pecuniary loss or gain to the insured resulting from the event: at pp. 333-34.

[320] The policy states that total disability is defined as “being unable to perform the important duties of your occupation and being under the regular and personal care of a physician”. Paragraph 2.1 states that the total disability benefit will be paid as long as the insured continues to meet the definition. The insured can participate in rehabilitation and the amounts payable under the policy are not reduced or affected by other payments the insured might receive, such as other insurance benefits. RBC commenced paying the disability benefits upon being satisfied that Dr. Jesperson met the criteria under the policy of total disability.

[321] I am of the view that the disability payments the Plaintiff received in the instant case must fall into the category of non-indemnity payments because the insurer was obligated to make the payments once they were satisfied Dr. Jesperson met the criteria of total disability under the policy. He was not required to prove as well that he had suffered a pecuniary loss as a result of the disability. Instead, once the disability test was met, the insurer was obligated to make the payments, which were not in any way tied to pecuniary losses actually sustained by Dr. Jesperson. He was not required to furnish proof of pecuniary losses sustained as a result of the total disability; rather, the policy amounts were payable once the insurer was satisfied the total disability test had been met.

[322] Adopting the analysis in Gibson, the liability of RBC to make the payments to Dr. Jesperson arose once the total disability test was met, that was the triggering event. There was no requirement under the terms of the policy for Dr. Jesperson to provide any evidence that as a result of his disability he had suffered pecuniary losses, as is the case in a contract of indemnity.

[323] Indeed, in her dissenting reasons in Cunningham, McLachlin J. noted that “If the insurance money is not paid to indemnify the plaintiff for a pecuniary loss, but simply as a matter of contract on a contingency, then the plaintiff has not been compensated for any loss. He may claim his entire loss from the negligent defendant without violating the rule against double recovery.”

[324] My view that the RBC benefits are not indemnity payments is reinforced by other factors. There is no provision in the policy that requires the insured to disclose other payments received so that the insurer could claim a set off and perhaps re-calculate the amount owing to the insured. That is because the terms of the policy do not take into consideration whether in fact a monetary loss was sustained as a result of the disability. The simple occurrence of the event is sufficient to engage the payments under the policy. Similarly, the policy makes no reference to employment so being employed at the time of the total disability is not a requirement under the policy, nor is the insured required to remain unemployed in order to continue receiving the benefits.

[325] The intentions of the parties is another relevant consideration. Dr. Jesperson was clear in his evidence, which was corroborated by his wife, that he bought the RBC policies shortly after he started working as a dentist in case he was unable to work in that capacity. He provided financial information from time to time, as requested by RBC. He purchased the policies to protect himself in the event of disability.

[326] The rule against double recovery is well established in the jurisprudence. The argument of the Defendant is compelling because it seeks to avoid the eventuality of a Plaintiff receiving more than his or her actual pecuniary losses arising from negligence of a tortfeasor, and this is contrary to the law on damages, which is to restore a person to the place they would be but for the tortfeasor’s negligent.

[327] The Defendant relies heavily on the dissenting opinion of McLachlin J. in Cunningham in support of its submissions for the deductibility of the RBC benefits. However, in the decision of the majority written by Cory J. the history underlying the basis for the private insurance exemption from deductibility is reviewed. The Court noted the case of Bradburn v. Great Western Railway, [1874] All E.R. 195 which established the principle that there “was to be no deduction of the insurance proceeds received …there would be no justice in setting off an amount to which the plaintiff had entitled himself under a contract of insurance such as any prudent man would make…I think that it ought not, upon any principle of justice, be deducted from the amount of the damages proved to have been sustained by him through the negligence of the defendants.” This has been referred to as the Bradburn rule, or the private insurance exemption.

[328] In deciding the disability benefits received by the Plaintiff ought not to be deducted from the damages, Cory J. went on to say,

[329] I think the exemption for the private policy of insurance should be maintained. It has a long history. It is understood and accepted. There has never been any confusion as to when it should be applied. More importantly it is based on fairness. All who insure themselves for disability benefits are displaying wisdom and forethought in making provision for the continuation of some income in case of disabling injury or illness…Recovery in tort is dependent on the plaintiff establishing injury and loss resulting from an act of misfeasance or nonfeasance on the part of the defendant, the tortfeasor. I can see no reason why a tortfeasor should benefit from the sacrifices made by a plaintiff in obtaining an insurance policy to provide foe lost wages. Tort recovery is based on some wrongdoing. It makes little sense for a wrongdoer to benefit from the private act of forethought and sacrifice of the Plaintiff.

[330] The instant case falls squarely within the private insurance exception articulated in Cunningham and as a result, the RBC benefits are not to be deducted from the award for damages.

Conclusion

[331] I award damages to the Plaintiffs as follows:

General damages Brent Jesperson: $150,000

Past loss of income Brent Jesperson: $2,465,000

Future loss of income Brent Jesperson: $2,591,161

Special Damages: $18,535

OHIP subrogated claim: $3,088

FLA claim of Irena Jesperson: $40,000

[332] The Plaintiffs are entitled to judgment in the sum of $5,267,784. As well, pre-judgment interest is payable on the non-pecuniary damages and past pecuniary damages pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43. If the issue of costs cannot be resolved between counsel, I may be contacted.

[333] I would like to thank counsel for two things: their patience in waiting for this judgment, which I would have preferred to have released sooner, but which was impossible; and for their excellent advocacy on behalf of their respective clients and their unfailing courtesy to the Court. This was a difficult case, with a multitude of issues and it was hard fought on both sides, as it should have been. It was, however, a delight to preside as trial judge with counsel who were always well prepared, never wasted a moment of the court’s time and treated the witnesses and the Court with respect at all times.

D.A. Wilson J.

Released: October 15, 2019

COURT FILE NO.: CV-13-477759

DATE: 20191015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DR. BRENT JESPERSON and IRENA JESPERSON

Plaintiffs

– and –

DR. YAIR KARAS

Defendant

REASONS FOR JUDGMENT

D.A. Wilson J.

Released: October 15, 2019