OSHAWA COURT FILE NO.: 94100/15
DATE: 20190205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Wallace and Carol Wallace
Plaintiffs/Responding Parties
– and –
Dr. Anthony Ralph-Edwards and Toronto General Hospital
Defendants/Moving Parties
Warren WhiteKnight, for the Plaintiffs/Responding Parties
Christopher M. Hubbard and Charlotte-Anne Malischewski, for the Defendant/Moving Party, Dr. Anthony Ralph-Edwards
HEARD: December 20, 2018
REASONS FOR DECISION
DI LUCA J.
[1] Brian Wallace needed life-saving cardiac surgery. His odds of survival without the surgery were rather grim. The surgery was a success and Mr. Wallace recovered from his cardiac condition. Unfortunately, as a result of the surgery, Mr. Wallace suffered a complication that caused partial vision loss in one eye and complete vision loss in his other eye.
[2] Dr. Ralph-Edwards is the doctor who performed the surgery and arguably saved Mr. Wallace’s life.
[3] Mr. Wallace and his wife, Carol Wallace, initially commenced this litigation alleging both negligence in the performance of the surgery and a failure to obtain informed consent. Following discoveries and the production of a defence expert report from Dr. Roy Masters, the plaintiffs consented to summary judgment dismissing the negligence claims. In this regard, the defence expert opined that Dr. Ralph-Edwards met the standard of care in terms of the conduct of the surgery. The plaintiffs did not have an expert report suggesting otherwise.
[4] The plaintiffs have also consented to an Order dismissing their claims against the Toronto General Hospital.
[5] The only claim that remains to be determined is the claim relating to Dr. Ralph-Edwards’ alleged failure to obtain consent to perform the life-saving surgery.
[6] On this issue, Dr. Ralph-Edwards seeks summary judgment. It is his position that based on the evidence before the court, there is no genuine issue requiring a trial. This position rests on three key grounds. First, there is no evidence that Dr. Ralph-Edwards failed to disclose a material risk. Second, on the basis of the evidence filed on the motion, there is no genuine issue as to subjective causation. In other words, Mr. Wallace has effectively agreed that he would have likely consented to the surgery even if he had been told of the risk of vision loss. Lastly, there is no evidence supporting a finding of causation on a modified-objective standard. The risks associated with the surgery were very low. By contrast, without surgery, Mr. Wallace faced the clear prospect of a decline in health and likely death. In these circumstances, no reasonable person would have declined the surgery.
[7] While the plaintiffs have not tendered their own expert opinion in support of the consent claim, they argue that support for their position is found within the expert report and evidence of Dr. Masters, the defence expert. In their view, there is a genuine issue whether the risk of vision loss was a material risk that had to be disclosed in order to obtain legal consent. In addition, they point to the evidence of Mr. Wallace which supports the view that he would not have consented to the surgery if he had known of the risk of vision loss. Lastly, they argue that the evidence about the nature and extent of consent discussions raise real concerns about whether Mr. Wallace was ever told about the risk of surgery. As such, they argue that a trial is required in order to fairly adjudicate this matter. Moreover, they argue that summary judgment is made even less appropriate in this case because the plaintiffs have served a jury notice.
[8] For the reasons that follow, I am satisfied that a trial is not required in order to fairly determine this matter. On the evidence before me, no reasonable person in the plaintiff’s position would have declined the surgery, even if apprised of the very low risk of vision loss. I am also satisfied that had Mr. Wallace been apprised of the risk of blindness, he would have nonetheless consented to the surgery. Assuming that the risk of blindness was a material risk that had to be disclosed, these findings are dispositive on the issue of causation.
Summary of the Evidence
[9] In support of the summary judgment motion, Dr. Ralph-Edwards prepared an affidavit setting out his evidence. He was not cross-examined or otherwise challenged on that affidavit.
[10] Dr. Ralph-Edwards also tendered an affidavit and expert report from Dr. Roy Masters, a cardiovascular and thoracic surgeon who has practiced at the University of Ottawa Heart Institute for over 30 years. Dr. Masters was cross-examined and challenged on aspects of his evidence.
[11] Mr. Wallace provided an affidavit in support of his position and he was subject to cross-examination. Part of the cross-examination focussed on a chart prepared by counsel listing the pros and cons of the surgery. The use of the chart was the subject of an objection during the argument of this motion and will be discussed briefly below.
(a) The Surgery
[12] On January 7, 2014, Dr. Ralph-Edwards performed heart valve surgery on Mr. Wallace. The surgery initially had no apparent complications. However, during a post-operative interview, Mr. Wallace reported some vision loss in his left eye. The vision loss spread to both eyes, and it appears that Mr. Wallace lost vision in his left eye and some of his vision in his right eye. Unfortunately, the vision loss is likely permanent. It appears that the vision loss likely stems from a small stroke that occurred as a result of the surgery.
(b) The Pre-Surgery Consent Discussions
[13] Dr. Ralph-Edwards first met Mr. Wallace on December 16, 2013 following a referral for aortic heart valve replacement surgery. Mr. Wallace was diagnosed as suffering from a severely clogged heart valve that had become symptomatic. The condition was expected to worsen exponentially over two to three years, ultimately leading to death if untreated.
[14] In terms of treatment, surgery to replace the heart valve was the only option. It was Dr. Ralph-Edwards’ view that even with medication, Mr. Wallace would continue to deteriorate to the point of a cardiac event requiring surgery. That said, Dr. Ralph-Edwards was also of the view that Mr. Wallace was a good candidate for the surgery as his heart function was otherwise good.
[15] When Dr. Ralph-Edwards met Mr. Wallace for the consultation, he had a consent discussion during which he explained the risks and benefits of the surgery. In terms of risks, Dr. Ralph-Edwards was of the view that Mr. Wallace had a 50% chance of dying by the two-year mark if he did not undergo the surgery. In his view, the surgery carried a 2% risk of death and a 1% risk of stroke.
[16] While Dr. Ralph-Edwards explained that there was a 1% chance of a stroke as a result of the surgery, he did not explain the varied manifestations of stroke including the possibility of vision loss. He was not taught during any of his medical training that vision loss was a material risk that needed to be disclosed in respect of this heart procedure, nor did he know of any other cardiac surgeons who disclose vision loss as a risk of this heart procedure.
[17] According to Dr. Ralph-Edwards, at the end of this consultation Mr. Wallace verbally provided consent to the surgery. The verbal consent was noted in Mr. Wallace’s file in a letter to the referring cardiologist, which was copied to the patient’s physician. The details of the consent discussion were not noted in the patient file. Dr. Ralph-Edwards did not initially obtain a signed consent form as it was his practice to leave the patient with the information provided to permit them time to digest the information and ask any questions they might have.
[18] On January 6, 2014, the evening before the surgery, Dr. Ralph-Edwards met with Mr. Wallace for a pre-operative interview. Dr. Ralph-Edwards does not have an independent recollection of this pre-surgery discussion. However, on the basis of his regular practice coupled with the consent forms found in the file, he was able to indicate with confidence that he would have again canvassed the risks and benefits of the surgery. A signed “Consent to Treatment” form from Mr. Wallace confirming that a consent discussion had taken place and confirming Mr. Wallace’s consent to the surgery was filed. The form does not indicate what specific advice was given in terms of material risks. Rather, it merely confirms that a discussion about the risks and benefits of the surgery has been conducted and that the patient has had an opportunity to ask any questions that he or she may have.
[19] In his examination for discovery, Dr. Ralph-Edwards indicated that despite his lack of specific recall, he was present for the consent discussion with Mr. Wallace. In particular, he noted that it was his signature on the consent form. As well, he noted the presence of a certain notation about allergies which he used a form of code on the form, confirming for him that he had been present when the form was signed. Dr. Ralph-Edwards agreed that the form only memorialized the fact that a consent discussion had taken place but did not memorialize the particulars of that discussion. He indicated since this action had commenced he had become more vigilant in documenting consent discussions.
[20] Dr. Ralph-Edwards indicated that he had two prior patients lose eyesight as a result of heart surgery, though the surgery in those cases was myectomy surgery and not the surgery that was done on Mr. Wallace. He also indicated that he had at least one patient die as a result of the surgery that Mr. Wallace had.
[21] Dr. Ralph-Edwards indicates that he could recall no patient ever withholding consent to this type of procedure.
(c) The Expert Opinion of Dr. Roy Masters
[22] Dr. Masters opined that Dr. Ralph-Edwards met the standard of care for informed consent. In particular, he explained that in his view, a person with Mr. Wallace’s heart condition had a 50% chance of dying within two years and an 80% chance of dying within three years. Without surgical intervention, a person in Mr. Wallace’s condition could expect a rapid decline in quality of life, with worsening symptoms and frequent hospital admissions. Dr. Masters opined that in Mr. Wallace’s case, surgical treatment was the only available option for treatment. Dr. Masters indicated this in his career, he only had one occasion of a patient refusing to consent to this type of surgery and that patient was returned to hospital within two or three weeks for emergency cardiac surgery.
[23] In terms of surgical risks, Dr. Masters opined that there was a 1.5%-2% risk of death from the surgery and a 1-1.5% risk of stroke from the surgery. He explained that a stroke could manifest itself in any number of ways including paralysis and blindness. In his view, the risk of blindness from stroke related to this surgery would be somewhere between 6/10,000 and 8/10,000.
[24] In view of the very low risk of blindness caused by stroke, Dr. Masters concluded that the standard of care for informed consent did not require disclosure of the risk. He further indicated that in his practice, he did not disclose the risk of blindness nor did he know of any cardiac surgeon who did disclose the risk.
[25] In cross-examination on this issue, Dr. Masters agreed that if a doctor had experienced multiple patients suffering vision loss following heart surgery, the informed consent discussion for future patients would need to be modified to disclose the risk of vision loss. While implicit in the nature of the question, Dr. Masters was not specifically asked whether the consent discussion would be linked to the specific type of surgery being performed. In other words, Dr. Masters was not asked whether the consent discussion for the type of surgery performed on Mr. Wallace would be varied by virtue of the fact that two patients who underwent a different type of surgery had suffered vision loss.
Mr. Brian Wallace
[26] In the summer of 2013, Mr. Wallace began to experience chest tightness and perhaps some difficulty breathing. He went to see his family physician and was referred to two cardiologists. He underwent a number of tests and was told that he needed heart surgery to replace an aortic heart valve. He was then referred to Dr. Ralph-Edwards for the surgery.
[27] At the time of the initial consultation on December 16, 2013, Mr. Wallace was also scheduled for a colonoscopy intended to determine whether he was suffering from cancer. Given the risks presented by Mr. Wallace’s heart condition, the colonoscopy could not be done until Mr. Wallace had the bad heart valve replaced.
[28] In his affidavit filed on the motion, Mr. Wallace indicates that he values quality of life over quantity. He indicates that at no point prior to the surgery did he appreciate the risks of the surgery. He denies having had a discussion with Dr. Ralph-Edwards about the risks of surgery including the risk of death, blindness or any other issues that could arise from surgery. He similarly denies having been told of the risks associated with an angiogram test performed by Dr. McLaughlin prior to the surgery.
[29] Mr. Wallace agrees that he signed the consent form on the night before the surgery, though he states that no one reviewed the form with him and he does not recall Dr. Ralph-Edwards being present when he signed the form.
[30] Mr. Wallace maintains that had he known about the risk of blindness, “even a very remote or unlikely risk,” he would not have consented to the surgery.
[31] In cross-examination, Mr. Wallace was asked about his history of heart trouble and he appeared reticent to agree with details of his history that had been recorded in his medical files. Upon further questioning, he agreed that his memory had faded on certain particulars and further agreed that what had been recorded by his doctors may well have been accurate.
[32] However, he remained quite insistent that Dr. Ralph-Edwards never discussed the risks of surgery with him and never explained the available options. Indeed, it was only after a lengthy series of questions that Mr. Wallace agreed that it was possible that Dr. Ralph-Edwards mentioned some of the risks in advance of the surgery.
[33] Mr. Wallace also maintained that he only signed the consent forms when asked to do so by a nurse. He claimed that he did not even see Dr. Ralph-Edwards the night before the surgery. Nonetheless, Mr. Wallace agreed that by signing the form, he acknowledged that he understood the risks and benefits of the procedure and that he was consenting to the procedure. He also agreed that he trusted the opinions of his treating physicians, including Dr. Ralph-Edwards, and was prepared to rely on their advice. On this issue, he acknowledged that all of his treating physicians supported the surgery as the only option available to Mr. Wallace.
[34] In terms of the risks of the procedure, Mr. Wallace was questioned on his assertion that had he known the risks involved with the procedure, including the risk of blindness, he would not have consented to the procedure. However, when cross-examined on what he now believed the risks to be, he was not able to provide an answer. More importantly, when advised that the risk of blindness from the procedure was less than 1/10 of 1%, he agreed that this was a risk he would have assumed in order to avoid an 80% chance of death without the surgery. He further acknowledged that in his view, most reasonable persons would assume the same risk.
[35] In cross-examination, Mr. Wallace was presented with a chart setting out two hypothetical scenarios that roughly matched the treatment options in this case. The chart lists a number of benefits and risks for both the “surgery” and “no surgery” options in this case. Mr. Wallace agreed that in view of the risks and benefits depicted in the chart, he would have consented to the surgery.
Mrs. Carol Wallace
[36] Mrs. Wallace was not present for either meeting with Dr. Ralph-Edwards, though she states that at no time did Mr. Wallace tell her about any risks associated with surgery. She believes that had he known of the risk of blindness, he would have opted out of the surgery.
[37] However, when presented with the same chart depicting the benefits and risks of the “surgery” versus “no surgery” options, she indicated that any reasonable person would have opted for the surgery option. She also indicated that she would have encouraged Mr. Wallace to follow Dr. Ralph-Edwards’ recommendations in relation to surgery even if there was a possibility of stroke or blindness.
The Legal Framework
(a) Summary Judgment
[38] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that a court shall grant summary judgment where there is no genuine issue requiring a trial. In Hryniak v. Maudlin, 2014 SCC 7 at para. 49, the Supreme Court of Canada discussed the scope of the summary judgment power in Rule 20.04(2)(a) of the Rules of Civil Procedure:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[39] The Court further directed judges considering summary judgment motions as follows at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[40] Summary judgment is only appropriate if, based on the evidence presented on the motion, the judge can confidently make the required factual findings and apply the relevant legal principles so as to fairly resolve the dispute. Resort to the enhanced forensic tools of Rule 20.04 (2.1) and (2.2) is only appropriate where it leads to a fair process and a just determination of the matter; see Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44; Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, at paras. 3-6.
[41] The modern approach to summary judgment motions requires that parties continue to put their “best foot forward”; see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9. As Corbett J. notes in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 32, aff’d 2014 ONCA 878:
Summary judgment motions come in all shapes and sizes, and this is recognized in the Supreme Court of Canada’s emphasis on “proportionality” as a controlling principle for summary judgment motions. This principle does not mean that large, complicated cases must go to trial, while small, single issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hyrniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.
[42] The Court can also assume that the party responding to a summary judgment motion will present the evidence it intends to rely on at trial in order to prove that its claim or defence has a chance of success. In the vernacular, the responding party must “lead trump or risk losing”, see: 1061590 Ontario Ltd. v. Ontario Jockey Club, (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.) at p. 557, Salsbury v. Kraft, 2017 ONSC 177 at para. 12, and Cvjetkovic v. Gupta, 2016 ONSC 2322 at paras. 43-45.
[43] In this case, the plaintiff argues that the test for summary judgment operates differently because a jury notice has been served. The plaintiff argues that the court should be cautious in overriding a litigant’s choice to have a matter tried by a jury, particularly where, as here, liability at least in part rests on the application of a reasonableness standard. The application of an objective reasonableness standard is a task well suited for a jury of six members of the public and as such, the court should only curtail access to a jury in the clearest of cases.
[44] In the context of this case, the plaintiff argues that the test for summary judgment is whether “in the face of a jury notice, the evidence is such that no reasonable jury properly instructed could find for the plaintiff”. In support of his position on the jury notice issue, the plaintiff relies on Roy v. Ottawa Capital Area Crimestoppers, 2018 ONSC 4207 at para. 38 and Kushnir v. Macari, 2018 ONSC 6218 at para. 34.
[45] The defendant argues that service of a jury notice cannot as a matter of law raise the bar on the test for summary judgment. The test remains whether in the circumstances of the particular case a trial is required in order to fairly determine the issues.
[46] There is split authority on this issue and no clear appellate guidance.
[47] In my view, the applicable test for summary judgment does not depend on whether a jury notice has been served. I reach this conclusion for the following reasons. First, Rule 20 does not either explicitly or implicitly suggest a different test for cases where a jury trial has been chosen by one or both parties; see Hollingshead v. Aerarium Development Corporation Limited, 2019 ONSC 231 per Charney J. To read Rule 20 as requiring a different analysis for jury trials would effectively permit a party to unilaterally raise the bar on a summary judgment motion simply by filing a jury notice; see Alexander v. Doe et al., 2018 ONSC 5882 per Spies J.
[48] Second, there is nothing in Hryniak suggesting that the summary judgment test is to be applied on a different standard in jury cases. Indeed, in Hryniak, the court uses a lengthy jury trial as an example of a disproportionate process that is properly amenable to the summary judgment process; see Anjum et al. v. Doe et al., 2015 ONSC 5501 per Myers J.
[49] Lastly, there is no right to a trial either with or without a jury under the Rules; see Anjum, supra, at para. 12. By extension, there is no right to a jury trial in cases involving the application of a reasonableness standard, where arguably a jury composed of random members of the community might be best positioned to assess what a reasonable person might do or expect. In this regard, I adopt the comments of Perell J. in Broomfield v. Kernaghan Estate, 2012 ONSC 739, wherein he rejected this argument noting that just because a jury may be well suited to determining an issue does not mean that a jury must determine the issue.
[50] The summary judgment process is an adjudicative process that exists separate and apart from the trial process and which, in appropriate cases, serves as an acceptable surrogate; see B. (R.) v. S. (E.) (Litigation guardian of), 2017 ONSC 7866 at paras. 16-18 per Kristjanson J. and Mehlenbacher v. Cooper, 2017 ONSC 3434 at para. 38 per Howard J. As such, there is no principled basis for applying a heightened standard on a summary judgment motion in cases where a jury notice has been filed. If the just and proportionate result in a case does not require a trial, it matters not that the trier of fact would have been a jury.
[51] I will add that while the filing of a jury notice may not change the test on summary judgment, it may be a factor to consider in assessing whether resort to the enhanced forensic powers under Rule 20.04(2.1) and (2.2) is appropriate; see Mitusev v. General Motors, 2014 ONSC 2342, at para. 91 per Edwards J. In such cases, the Rules direct the court to consider using the enhanced forensic powers “unless it is in the interests of justice for such powers to be exercised only at trial”. In the appropriate case, a consideration of whether it is “in the interests of justice” may include a consideration of the fact that a party has filed a jury notice.
(b) The Law of Informed Consent
[52] To establish a claim based on a lack of informed consent for a medical procedure, the plaintiff must establish that the defendant doctor failed to adequately disclose a relevant treatment option or a material risk, and that the failure to disclose caused the plaintiff’s damages; see Reibl v. Hughes, [1980] 1 S.C.R. 880 and Salsbury v. Kraft, 2017 ONSC 177 at para. 13 and see also s. 11 of the Health Care Consent Act.
[53] A material risk is one that a reasonable person in the patient’s position would want to know about before deciding whether to proceed with the proposed treatment; see Revell v. Chow, 2010 ONCA 353 at para. 41. Risks that are rare will be material if the consequences of those risks are serious; see Van Dyke v. Grey Bruce Regional Health Centre, 2005 CanLII 18841 (ON CA), at para. 63, leave to appeal to S.C.C. refused.
[54] Causation is determined on the basis of a modified objective test. First, the plaintiff must establish that the plaintiff subjectively would likely have not consented to the procedure if a relevant treatment option or material risk had been disclosed. Second, the court must then assess whether a reasonable person in the plaintiff’s circumstances likely would have consented to treatment if the required disclosure had been made; see Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539, and Nichols v. Young, [2002] O.J. No. 515 (S.C.J.), aff’d [2003] O.J. No. 4376 (C.A.). The assessment of the reasonable person in the plaintiff’s position includes a consideration of any special circumstances relating to the plaintiff that are present, including any questions that the plaintiff might have asked. That said, idiosyncratic beliefs particular to the plaintiff are excluded from consideration.
[55] The modified objective standard recognizes that many, if not most, plaintiffs will state “with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages”, that consent would never have been given if proper disclosure had been made; see Arndt v. Smith, supra, at para. 16. Moreover, the modified objective standard addresses the fact that an injured plaintiff will often credibly state that he or she never would have consented to a procedure that resulted in an unintended consequence. Such a statement, while perhaps honestly held, is invariably tainted by the subsequent trauma that has materialized; see Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634 at para. 70.
Analysis
(a) Disclosure of Material Risk
[56] The law is clear that it is not every conceivable risk that must be disclosed. It is only risks that a reasonable person in the patient’s position would want to know in order to make an informed decision. However, the decision about what risks are material is not simply a medical question to be determined by reference to professional standards or expert evidence. The question is a legal question that is determined by the trier of fact based on all the circumstances of the case including circumstances relating to the patient; see Reibl v. Hughes, supra, Hopp v. Lepp, 1980 CanLII 14 (SCC), [1980] 2 S.C.R. 192, and Videto et al. v. Kennedy (1981), 1981 CanLII 1948 (ON CA), 125 D.L.R. (3d) 127 (Ont.C.A.).
[57] The case law on informed consent seeks to ensure that patients are given a full and proper basis upon which they can decide issues of consent. The concept of materiality is context specific. A small risk of a disastrous outcome likely meets the test for materiality whereas a fairly certain risk of a less serious outcome will not. To state two obvious examples, a remote risk of death is usually material whereas a fairly high chance of a treatable infection is not.
[58] Mr. Wallace’s statement of claim pleads that Dr. Ralph-Edwards failed to disclose a risk of stroke and further failed to disclose a risk of blindness, both of which it is argued are material risks that ought to have been disclosed.
[59] There is no issue that the risk of blindness was never disclosed. Indeed, Dr. Ralph-Edwards candidly acknowledged that he did not disclose the risk of blindness as, in his view, it was not a significant risk that needed to be disclosed.
[60] There is a divide in the evidence as to whether a risk of stroke and death was ever disclosed. Dr. Ralph-Edwards maintains that he advised Mr. Wallace of the risk of stroke and death and that Mr. Wallace nonetheless consented to the surgery. Mr. Wallace denies that a discussion about the risk of stroke and death ever occurred.
[61] Dr. Ralph-Edwards indicates that while he does not have a complete memory of this case, his regular and invariable practice would be to advise patients undergoing this type of surgery of both the risk of death and the risk of stroke. He is confident that he did this when he initially met with Mr. Wallace, and he reflected the conclusion that Mr. Wallace was agreeable to proceed with the surgery in a letter to the referring cardiologist. He then re-visited the consent issue the night before the surgery. When he re-visited the issue, he obtained a signed form confirming that he had advised Mr. Wallace of the risks of the surgery. Notations on the form, confirmed for Dr. Ralph-Edwards that he was present when the form was signed.
[62] Mr. Wallace denied in his evidence that he was either advised of the risks of the surgery or that he knowingly signed the form in Dr. Ralph-Edwards’ presence. Mr. Wallace agreed in cross-examination that his memory of certain events has faded and that it is possible that certain risks were disclosed and simply no longer remembers. Mr. Wallace also agreed that he signed the consent form and that he knew it was an important document and would not have signed if it was untrue. He agreed that by signing the consent form he was indicating that he understood the risks and benefits of the surgery and further that he was consenting to the surgery.
[63] In terms of the materiality of a risk of blindness, Dr. Ralph-Edwards does not agree that the risk of blindness is a risk that ought to have been disclosed. He indicates in his evidence that he was not trained to disclose the risk of blindness and does not know of any doctor who does. Dr. Masters’ expert opinion was that the failure to advise of the risk of blindness in the circumstances of this case did not fall below the standard of care. Dr. Masters testified that he does not advise patients of the risk of blindness in relation to this surgery, nor does he know of any doctor who does.
[64] In cross-examination, Dr. Masters was asked whether a doctor who had experienced multiple patients suffering blindness after heart surgery would need to advise prospective patients of the risk and he replied affirmatively. The plaintiff relies heavily on this answer and points out that Dr. Ralph-Edwards had two prior patients who suffered blindness after heart surgery and that as a result he should have viewed the risk of blindness as material, regardless of the statistical probability.
[65] This evidence suffers from some frailty. First, while Dr. Ralph-Edwards did have two patients who suffered blindness following heart surgery, it was not the same type of surgery done in this case. In the absence of evidence confirming a relevant degree of similarity between the two types of surgery, it may be difficult, though not impossible, to conclude that Dr. Ralph-Edwards’ prior experience with a different type of surgery should have informed his view of the material risks of the surgery performed in this case. Second, while Dr. Masters was cross-examined on this issue, it was not specifically put to him that the blindness had occurred as a result of a different type of surgery. Indeed he was not advised of the type of surgery that had resulted in blindness, nor asked to opine on the chance of blindness in relation that type of surgery.
[66] I also note that the blindness that occurred in this case was likely the result of a small stroke. According to Dr. Ralph-Edwards, the risk of stroke was disclosed. However, a stroke can manifest itself in many ways. Commonly, most people would expect a stroke to manifest itself in some form of paralysis, memory impairment or speech impediment. Indeed, Dr. Master’s agreed that a patient might not appreciate that a stroke could result in blindness.
[67] When I assess the materiality of the risk of blindness, I conclude that a trial is required in order to fairly determine the issue. There is an argument to be made that a person in Mr. Wallace’s position would reasonably want to know about a risk of blindness. It is a significant consequence that would have a long-lasting impact on a person. While I acknowledge that neither Dr. Masters nor Dr. Ralph-Edward viewed the risk of blindness as a material risk, the issue is not simply determined from a medical perspective.
[68] Further, even if I were to conclude that Mr. Wallace was advised of the risk of stroke, it would be open to a trier of fact to find that the risk of stroke would not adequately provide a basis for an informed decision relating to a risk of blindness. While a doctor would readily appreciate that blindness could be a manifestation of a stroke, a patient in Mr. Wallace’s position might not reasonably appreciate the connection without being so advised.
[69] On the whole, I am not satisfied that I can determine this issue on this record.
(b) Modified Objective Test
[70] I turn next to the issue of causation. I will start my analysis with the modified objective test as that is the basis on which Mr. Wallace’s claim can be most readily assessed. On this issue, I note at the outset that neither Dr. Ralph-Edwards nor Dr. Masters were challenged on their view that the surgery conducted was the only treatment available to address Mr. Wallace’s heart condition. Simply stated, there was no alternative. This was not a scenario where a person was assessing risks in relation to elective surgery. There was nothing specific to Mr. Wallace that might have reasonably caused him to hold off on the surgery. On the contrary, Mr. Wallace was also undergoing testing to rule out a cancer diagnosis and certain testing was put on hold due to his heart condition.
[71] In terms of Mr. Wallace’s prognosis without surgery, Dr. Ralph-Edwards was of the view that Mr. Wallace had a 50% chance of dying within two years. Dr. Masters agreed and added that within three years, Mr. Wallace had an 80% chance of dying. Dr. Masters opined that without surgery, Mr. Wallace would be expected to live two to three years. This evidence was unchallenged.
[72] In terms of the risks associated with the type of surgery performed on Mr. Wallace. Dr. Ralph-Edwards was of the view the specific surgery performed on Mr. Wallace had a 2% chance of death and a 1% chance of stroke. Dr. Masters placed the risk of death from the surgery at 1.5-2% and placed the risk of stroke at 1-1.5%. This evidence was also unchallenged.
[73] Importantly, in terms of the specific risk of blindness as a result of the surgery, Dr. Masters opined that the there was a 0.08% or less chance of blindness. He was not challenged on this opinion.
[74] There was no expert evidence filed by the plaintiff contradicting Dr. Masters’ opinion.
[75] The application of the modified objective standard to these uncontested facts can be fairly done within the context of this summary judgment motion, without resort to the enhanced forensic powers of Rule 20.04 (2.1) and (2.2).
[76] Assuming for the sake of argument that the risk of blindness was a material risk that ought to have been disclosed in addition to the risk of death and risk of stroke, I readily conclude that no reasonable person facing Mr. Wallace’s prognosis would have withheld consent to this surgery. Simply stated, there was no alternative treatment and it was likely that Mr. Wallace would die within three years if he did not have the surgery. The very small risk of blindness is not something that would have reasonably caused anyone in Mr. Wallace’s position to not undergo the surgery.
[77] I appreciate Mr. Wallace’s evidence that he values quality of life over quantity. This evidence admits of an element of hindsight bias. That said, even if one appreciates quality of life over quantity, the uncontested evidence is that without surgery Mr. Wallace would have had a rapid decline in health likely resulting in an emergency or death. As well, Mr. Wallace was awaiting testing to investigate his gastrointestinal bleeding in order to rule out cancer. That testing could not be done until his cardiac condition was stabilized. When viewed against a less than one tenth of one percent chance of blindness, the answer is obvious, even a person who values the quality of life over the quantity would have opted for the surgery in these circumstances.
[78] Lastly, I note that the plaintiff has tendered no evidence supporting a finding that a reasonable person would refuse to consent to this type of medical procedure in similar circumstances. To the contrary, both Mr. and Mrs. Wallace agreed in cross-examination that a reasonable person would likely have consented to the surgery. As well, Dr. Masters testified that over his career, he only had one person decline to give consent to this type of surgery and that patient was subsequently rushed to hospital for emergency surgery. Similarly, Dr. Ralph-Edwards had no patient ever decline this surgery.[^1]
[79] In my view, considering all of this evidence, no reasonable person would have withheld consent to this surgery. This finding is dispositive of this motion and I would grant summary judgment dismissing the claim on this basis alone. In the event that I am wrong on this issue, I will nonetheless address the balance of the causation analysis.
(c) Subjective Causation
[80] I turn lastly to the subjective causation element. On this issue, Mr. Wallace initially deposed that if he been advised of the risks of surgery he would not have consented. In his cross-examination, he made a number of admissions that call into question his initial assertion.
[81] On the hearing of the motion, the plaintiff objected to the manner in which Mr. Wallace was cross-examined. In particular, the plaintiff argued that the use of a chart setting out the risks of the “surgery” and “no surgery” options was unfair and impermissible, and that Mr. Wallace’s evidence in response to questions using the chart should not be relied on in deciding this motion.
[82] There is no merit in this argument. The chart that was prepared by counsel for the defendant and put to Mr. Wallace in his cross-examination was a demonstrative aid that had a firm foundation in the evidence of Dr. Masters and also the evidence of Mr. Wallace. More importantly, the plaintiff did not challenge the portions of the chart that were based on Dr. Masters’ expert opinion. In my view the chart was not only properly and fairly put to Mr. Wallace, it resulted in answers that are telling in terms of the subjective causation analysis.
[83] When the chart was put to Mr. Wallace, he agreed that if the information in the chart had been provided to him, he would have opted for “surgery” over “no surgery”. As such, even assuming that the risk of blindness was material and had to be disclosed, the disclosure of that risk in the context of the other risks associated with the two options available to Mr. Wallace would have, based on his own evidence, likely result in him consenting to the surgery.
[84] Interestingly, while Mr. Wallace indicated that had he been advised of the risk of blindness he would not have consented to the surgery, when he was asked to articulate what the risk of blindness was, he could provide no answer. He similarly could provide no answer in relation to the risks of not having the surgery.
[85] Excerpts of his evidence on these issues are as follows:
- Q. Okay. So when you swore this affidavit last week, you didn’t know what the percentage chance of blindness was, or what the percentage chance of death was, as a result of the surgery? Is that fair?
A. Yes.
- Q. Okay. So as of last week when you swore this affidavit you had no idea of what would likely have happened to you clinically, your symptoms, if you had not had the surgery?
A. Correct.
- Q….if you had a very low chance of death as a result of the surgery and it permitted you to avoid a much higher chance of death that would be an important consideration?
A. Yes.
- Q. Something you would have taken seriously into consideration?
A. Yes
- Q. And something you would expect any reasonable person to take into consideration?
A. Yes.
- Q. And another relevant factor would be quality of life with and without the surgery, correct?
A. Yes.
- Q. That’s something that’s important to you.
A. Yes.
- Q. And something that you would strongly consider and expect any reasonable person would consider?
A. Yes.
- Q. And similarly, while blindness and vision loss are something any reasonable person would want to avoid, I take it you agree that living with partial vision loss is preferable to being dead?
A. Of course.
- Q. And indeed even living with blindness is preferable to being dead?
A. Yes.
- Q….So you would expect that most reasonable people to (sic) accept a very small risk of becoming blind or suffering some extent of vision loss in order to avoid a very high risk of dying?
A. Yes.
- Q. And so, for example, you would expect that most reasonable people would accept a risk of becoming blind of less than a tenth of a percent in order to avoid an 80% chance of death, correct?
A. Yes.
- Q. That risk of blindness of less than a tenth of a percent is something you would accept in order to avoid an 80% chance of death.
A. Yes.
- Q. Okay. And would you agree sir, given this hypothetical and based on these assumptions – and I’m not asking you to accept that they’re true – but given these assumptions, would you expect that most reasonable people would choose Option A [surgery]?
A. Yes.
- Q. And, indeed, given the relative risks and benefits set out in this hypothetical, I expect that if this was the information you were provided with you would also choose Option A [surgery], correct?
A. Yes. [Emphasis added]
[86] In view of this evidence, a trial is not required to determine the subjective causation issue in this case. I am prepared to find that there are credibility and reliability problems with Mr. Wallace’s assertion that he would not have consented to the surgery if all the material risks had been properly disclosed. In short, his initial assertion suggests an understandable hindsight bias. However, his answers in cross-examination effectively undermine his own assertion on the issue of consent. By his own admission, if advised of relative risks of death, stroke and blindness due the surgery in the context of the risks of proceeding without the surgery, Mr. Wallace would likely have consented to the surgery.
[87] This is an unfortunate case. Mr. Wallace’s life was saved by Dr. Ralph-Edwards, but a complication has resulted in partial blindness. Mr. Wallace is understandably upset over his vision loss and I have no doubt that his life has changed significantly since the surgery. I feel significant sympathy for Mr. Wallace and understand why he seeks redress. Nonetheless, I see no need to send this case to trial. The motion for summary judgment is granted and the claim is dismissed.
Costs
[88] At the outset of the motion, counsel for the Dr. Ralph-Edwards indicated that in the event he was successful on the motion he would not be seeking any costs. In accordance with that commendable position, there will be no costs ordered.
Justice J. Di Luca
Released: February 5, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Wallace and Carol Wallace
Plaintiffs/Responding Parties
– and –
Dr. Anthony Ralph-Edwards and Toronto General Hospital
Defendants/Moving Party
REASONS FOR DECISION
Justice J. Di Luca
Released: February 5, 2019
[^1]: I am cognizant that neither Dr. Masters nor Dr. Ralph-Edwards ever advised patients of the risk of blindness, only the risk of death and stroke. That said, the fact that between the two of them, only one patient ever refused this type of surgery is nonetheless relevant to assessing the modified objective standard.