COURT FILE NO.: CV-14-495746 DATE: 20201021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICIA COFFEY, MICHAEL COFFEY and RACHEL COFFEY

Plaintiffs

– and –

JAMIE CYRIAC

Defendant

Paul Harte, Giuseppe (Joe) Michelucci and Ron Bohm, lawyers for the plaintiffs

Erica J. Baron and William L. Main, lawyers for the defendant

HEARD: March 3 to 13, 2020 and July 20 and 21, 2020

J.E. FERGUSON J.

REASONS FOR JUDGMENT

THE TRIAL

[1] This trial was held before a jury from March 3, 2020 until March 13, 2020, when things ground to a halt because of COVID-19. Fortunately, because of the flexibility and cooperation of counsel, the trial continued without a jury on July 20 and 21, 2020 and was then adjourned to allow counsel to provide written submissions. All transcripts were ordered. Written submissions were received, the last on September 10, 2020. Thank you counsel for your comprehensive submissions, including helpful page and paragraph references to evidence. As the references accurately set out the recorded evidence and exhibits, I am not including them in these Reasons.

CREDIBILITY FINDINGS

[2] Credibility is front and centre in this case. I am going to start with my bottom-line findings in that regard as they particularly affect the issue of informed consent and the limitation period defence.

[3] With respect to informed consent, I believe Patricia Coffey ("Mrs. Coffey") when she says that, had she been told that Dr. Cyriac would undo the fundoplication/wrap ("both words used interchangeably depending on 'user'") put in place by Dr. Marcus during his 2001 surgery to deal with her acid reflux ("the 2001 Marcus Surgery"), she would have said, "No thanks." She would not have undergone Dr. Cyriac's surgery and would have chosen to remain overweight (with the accompanying medical problems), instead of ending up with even worse acid reflux and ultimately requiring surgery to remove her stomach.

[4] On this issue we have more than just Mrs. Coffey's evidence. Her daughter Rachel ("Ms. Coffey") was present at the November 26, 2010 appointment with Dr. Cyriac. Ms. Coffey had been commissioned by her mother to act as an "extra pair of ears and eyes." Ms. Coffey was clear in her evidence and said that if her mother had been told that the wrap was coming down, she would not have proceeded with Dr. Cyriac's surgery. Further, both Mrs. and Ms. Coffey testified that they specifically told Dr. Cyriac that the 2001 Marcus Surgery was not to be touched and that they were assured it would not be. Ms. Coffey's testimony corroborates her mother's.

[5] I do not believe or accept Dr. Cyriac's evidence on this issue. He did not have complete and proper notes, including the consent form, which omitted important information, and had no independent recollection of Mrs. Coffey's appointment. He was a new, young surgeon and this appointment dates back 10 years; it is not surprising that Dr. Cyriac has no memory of meeting the Coffeys. I accept the Coffeys' evidence that Dr. Cyriac did not have Mrs. Coffey's consent to proceed with surgery. Although it is only necessary to make a finding on a balance of probabilities, I find that the evidence exceeds that standard on this issue.

[6] With respect to the limitation defence, I further believe and accept the evidence from Mrs., Ms., and Michael Coffey ("Mr. Coffey"), that the first time Mrs. Coffey learned that her wrap had been taken down was from Dr. Marcus on January 12, 2012. The claim was commenced in time on January 2, 2014 and the limitation defence fails. This finding will be expanded upon below.

BACKGROUND INFORMATION ABOUT MRS. COFFEY

[7] Mrs. Coffey has a grade 12 education. She originally worked in the bakery department at Loblaws, which required heavy lifting. One morning in 1979, she awoke and had trouble moving. She was eventually diagnosed with fibromyalgia, which is accompanied by chronic pain. Due to the nature of her condition, Mrs. Coffey was placed on a CPP pension and did not return to work. Over the years, Mrs. Coffeylearned to manage the fibromyalgia and her pain by pacing her activities and schedule.

[8] Mrs. Coffey has also had other health conditions, including hypothyroidism, type 2 diabetes, elevated cholesterol, and asthma, all of which were controlled by medication. She had arthritis in her knees, for which she received pain injections, and sleep apnea, for which she was prescribed a CPAP machine (though she did not regularly use this because it affected her sleep). She had a partial rotator cuff tear, which was treated with surgery in 2009. Notwithstanding her health challenges, Mrs. Coffey lived an active and full life.

[9] Mrs. Coffey has a history of severe acid reflux, which led to her referral to an experienced anti-reflux surgeon, Dr. Marcus, in 2001. Dr. Marcus has performed more than 1200 anti-reflux surgeries over his career. Mrs. Coffey presented to Dr. Marcus with a 10-year history of upper gastrointestinal complaints and a diagnosis of gastroesophageal reflux disease ("GERD"). Mrs. Coffey's GERD, which had previously been treated with medication, was getting worse. She reported episodes of burning retrosternal pain and a choking sensation in her neck; frequent regurgitation of sour or bitter fluid into her throat; significant daily nausea and intermittent episodes of epigastric pain radiating to her back, which were waking her up at night; and intermittent episodes of difficulty with swallowing. The GERD was believed to have caused a short segment of Barret's esophagus,which can lead to precancerous changes and/or cancer. Dr. Marcus confirmed that GERD can make life miserable.

[10] After completing his investigations, Dr. Marcus concluded that Mrs. Coffey's GERD was likely caused by a mechanical failure of her lower esophageal sphincter ("LES"). Dr. Marcus offered Mrs. Coffey surgical treatment, known as a Nissen fundoplication, during which the top of the stomach is wrapped all the way around the bottom of the esophagus. The intention is to tighten the sphincter at the top of the stomach to compensate for the mechanical failure of the LES.

[11] Dr. Marcus explained the procedure to Mrs. Coffey using pictures that showed the anatomy before and after the operation.

[12] During the operation, it was necessary for Dr. Marcus to divide tissue around the area where the esophagus comes through the diaphragm. This opening in the diaphragm is known as the esophageal hiatus. During the operation, Dr. Marcus widened this opening, freeing up the esophagus. Because the diaphragm must be returned to its original state, this involves a narrowing of the esophageal hiatus by putting a stitch in the diaphragm in the area through which the esophagus passes. If the diaphragm is not stitched, the stomach and esophagus can herniate through the diaphragm, causing a hiatal hernia. For whatever reason, Mrs. Coffey referred to this surgery as a hiatus hernia repair. As Mrs. Coffey only completed grade 12 and has no medical training, her belief about the name of her surgery is not unreasonable.

[13] Mrs. Coffey had a good result from the procedure; Dr. Marcus had fixed or improved the mechanical failure of her lower esophagus.

[14] The Plaintiffs' expert Dr. Gagner confirmed that there were indications for surgery, including an incompetent sphincter, reflux symptoms, and the Barret picture in her esophagus.In 2001, a gastroscopy demonstrated that the sphincter was extremely weak, widely open, and patulous, which is an objective sign that the sphincter is not closing well. Dr. Gagner testified: "incompetent sphincter is good enough to undergo the surgery by gastroscopic findings." Mrs. Coffey described the result of this surgery as fabulous and said that she had no more problems with GERD and did not have to worry about cancer.

[15] In or around 2005, Mrs. Coffey was referred to a bariatric surgeon, Dr. Hagen, for consideration of weight loss surgery. Mr. and Mrs. Coffey saw Dr. Hagen together. They were told that she could not have bariatric surgery because of her prior hiatus hernia surgery. Dr. Hagen did not testify, and this is hearsay evidence. However, we know that Mrs. Coffey did not undergo surgery by Dr. Hagen, so this interaction is part of the narrative. I also note that, although Mrs. Coffey told Dr. Cyriac that she had seen Dr. Hagen for consideration of bariatric surgery five years earlier, Dr. Cyriac did not contact Dr. Hagen (a surgeon with whom he had trained) to request any information about his appointment with Mrs. Coffey. I agree with the Plaintiffs that this would have been a short, easy call that could have helped the situation or at least provided Dr. Cyriac with more information regarding Mrs. Coffey and Dr. Hagen's view on indications or contraindications for further surgery.

[16] Mrs. Coffey had suffered from obesity for a long time prior to Dr. Cyriac's procedure. Her preoperative weight was 234 pounds with a BMI of more than 40, which signified "morbid obesity or obesity class three." Her high blood pressure and high cholesterol were related to her weight. She had tried everything to lose weight, without success. The referral to the Toronto Western Hospital Bariatric Program (the "TWH Bariatric Program") by Mrs. Coffey's family doctor in 2010 was appropriate and no issue has been raised by anyone with respect to that referral.

BACKGROUND INFORMATION ABOUT DR. CYRIAC

[17] Dr. Cyriac is a medical doctor licensed to practise medicine in the Province of Ontario. At the time of the events in question, he had been a general surgeon for just over three years and specialized in minimally invasive surgery, including bariatric surgery.

[18] Dr. Cyriac graduated from medical school at the University of Western Ontario in 2000. He completed a residency in General Surgery at the University of Toronto between 2000 and 2005, during which time he received training in laparoscopic or minimally invasive surgery.

[19] Following his residency, Dr. Cyriac underwent a one-year fellowship in minimally invasive and bariatric surgery at the University of Toronto. Dr. Cyriac spent six months of the fellowship at Humber River Hospital, during which time he performed bariatric surgery approximately two days a week.

[20] In 2006, following his fellowship, Dr. Cyriac began practicing as a staff surgeon at Toronto East General Hospital.

[21] In 2008, Dr. Cyriac and other bariatric surgeons in Ontario were involved in establishing a program called the Ontario Bariatric Network (the "OBN") at the direction of the Ministry of Health. One of the goals of the OBN was to develop and implement a uniform set of guidelines about bariatric consultations, clinics, and procedures. The OBN aimed to reach consensus regarding indications and contraindications for particular types of bariatric procedures. At that time, the OBN in Toronto was comprised of the TWH Bariatric Program, Toronto East General Hospital, Humber River Hospital, St. Joseph's Hospital, and St. Michael's Hospital.

[22] The primary publicly funded procedure performed by bariatric surgeons at the OBN was the Roux-en-Y gastric bypass, although sleeve gastrectomies were also performed.

[23] Nothing in Dr. Cyriac's education at medical school or in his residency directly addressed the taking down of a fundoplication to perform a sleeve gastrectomy.

[24] Dr. Cyriac initially suggested that he was relying on medical literature to support his recommendation to Mrs. Coffey. He later conceded that he was not aware of any literature discussing a sleeve gastrectomy with a prior fundoplication. His recommendation to Mrs. Coffey was not guided by anything in a text or any research studies, guidelines or principles, published articles, or peer-reviewed journals.

[25] At the time of Mrs. Coffey's surgery, Dr. Cyriac had performed six laparoscopic sleeve gastrectomies, which were routine, primary surgeries performed on someone with normal anatomy (i.e. someone who had not previously had surgery in the area; where a person has previously had surgery in the area, it becomes revisionary surgery).

[26] Dr. Cyriac had never performed nor assisted with the surgery he was recommending to Mrs. Coffey (i.e. a sleeve gastrectomy with a takedown of the fundoplication). Prior to 2011, no such operation had ever been performed at the TWH Bariatric Program.

EXPERT EVIDENCE

[27] An issue arose with respect to the qualifications of the proposed experts, Dr. Gagner for the Plaintiffs and Dr. Jackson for Dr. Cyriac. In a nutshell, the issue with respect to Dr. Gagner involved the "location" criteria for expert witnesses. The issue with respect to Dr. Jackson involved his complete lack of experience with Dr. Cyriac's surgery and alleged bias due to his connection with Dr. Cyriac through the TWH Bariatric Program. I heard from both experts and the issue became a matter of the weight accorded to their evidence.

[28] To opine on the standard of care, experts must be appropriately positioned.[^1] In Anderson v. Nowaczynski, the court confirmed that expert opinion on the standard of care must be provided "through the eyes of a physician of the same background and training" as the defendant.[^2]

[29] In Kurdina v. Dief, the plaintiff appealed a summary judgment decision dismissing claims for negligence against two psychiatrists.[^3] The Ontario Court of Appeal dismissed the appeal as the plaintiff's experts were not qualified to practise in Ontario:

None of the deponents the appellant offered were psychiatrists qualified to practise in Ontario or qualified to provide expert evidence on the applicable standard of care in Ontario. Without any evidence that the respondents had fallen below the standard of care that applies to them, the appellant's claim had no hope of success. Both actions were properly dismissed by way of summary judgment.[^4]

[30] I comment at this point that the location requirement is not always the only or best requirement. The case before this court is unique. Dr. Gagner is an experienced bariatric surgeon with over 30 years' experience. He practises mostly in Quebec and has extensive experience in many types of bariatric procedures, including the surgery that Mrs. Coffey underwent with Dr. Cyriac. Dr. Gagner has an international reputation. He has previously practised in the United States, Qatar, and Kuwait, where he was invited to start a bariatric program. He was the first bariatric surgeon to perform a laparoscopic sleeve gastrectomy, which has gone on to become the most commonly performed procedure for weight loss in the world.

[31] Dr. Gagner has held the position of Chief of Department at several hospitals. He has taught medical students, interns, residents, clinical fellows, and licensed physicians. He lectures regularly around the world. He is a member of more than 30 medical organizations and has held a leadership position in many of them. He has published more than 300 peer-reviewed journal articles and is a peer reviewer for many journals. Dr. Gagner regularly attends the Canadian Association of Bariatric Physicians and Surgeons meetings.

[32] Dr. Gagner also regularly provides his opinion as an expert in medical legal matters on behalf of both physicians and patients in Quebec and the United States. He has provided opinions on the standards of care in Ontario. He is aware of the OBN and has previously provided his opinion on the standards of care in bariatric surgery in Ontario.

[33] Dr. Jackson gave evidence on behalf of Dr. Cyriac. At the time of Dr. Cyriac's surgery on Mrs. Coffey, Dr. Jackson was at the beginning of his career and had been in practice for less time than Dr. Cyriac. Dr. Jackson practises in Ontario, but at the time had very little experience as a bariatric surgeon and no experience with the revisionary surgical procedure that Dr. Cyriac recommended to and performed on Mrs. Coffey.

[34] Further, Dr. Jackson was the acting Medical Director of the TWH Bariatric Program, where Dr. Cyriac practised and performed his surgery, in 2010/2011.

[35] In comparison to the thousands of sleeve gastrectomies that Dr. Gagner had performed, Dr. Jackson had likely performed no more than 35 at the relevant time. Dr. Jackson still has not ever performed a sleeve gastrectomy on a patient with a prior fundoplication.

[36] The issue in this case is not as simple as the geographical location in which the experts practise. The issue is that, in 2010 and 2011, Dr. Gagner had extensive experience with bariatric surgery and, in particular, with a sleeve gastrectomy with the takedown of a fundoplication. Dr. Jackson had no experience with this surgical procedure (in fact, neither did Dr. Cyriac at the time). The fact that Dr. Jackson had no experience whatsoever with Mrs. Coffey's revisionary surgery clearly puts him at a disadvantage to Dr. Gagner, who has significant experience with this and other revisionary surgeries. In this case, it is experience that is relevant and which prevails.

[37] Further, Dr. Jackson is one of a group of eight surgeons/partners, including Dr. Cyriac, working out of the TWH Bariatric Program. Drs. Cyriac and Jackson "were both treating bariatric patients who were being managed through the same administrative and assessment centre at TWH." They are colleagues and were collaborating in the OBN.

[38] Dr. Jackson confirmed that he entirely rejected the evidence of Mrs. Coffey and did not consider the evidence of Ms. Coffey. In fact, he did not even read Ms. Coffey's examination for discovery transcript. He accepted Dr. Cyriac's evidence in totality and opined that not only did Dr. Cyriac meet the standard of care, he exceeded it.

[39] Dr. Jackson is too close to Dr. Cyriac and to the program that assessed and prepared Mrs. Coffey for her surgery. Dr. Jackson relies on this program, for which he was the Medical Director, to support his opinion that Mrs. Coffey knew of and accepted the risks of the proposed surgery. He agreed that none of the intake sessions with Mrs. Coffey dealt with the takedown of a fundoplication or a sleeve gastrectomy, let alone the combination.

[40] I am not going to engage in a battle as to which expert was more the advocate. Effective cross-examination was conducted on both. The main issue is that a very experienced bariatric surgeon has been pitted against a surgeon who, at the time of Mrs. Coffey's surgery, had no experience with a sleeve gastrectomy with the takedown of a fundoplication and who has close connections to Dr. Cyriac. I expect that the Plaintiffs would have faced the same criticism if they had retained an expert from the OBN in Toronto.

REFERRAL TO THE TWH BARIATRIC PROGRAM AND THE APPOINTMENT WITH DR. CYRIAC

[41] Mrs. Coffey was directed to the TWH Bariatric Program for weight loss advice in the summer of 2010. The program involved an orientation session and appointments with various health professionals, including a dietician, social worker, nurse practitioner, and psychologist. There were no appointments with physicians at this point in the program. During these sessions, the only bariatric surgery discussed in any meaningful way was Roux-en-Y gastric bypass surgery, which in late 2010 was the bariatric procedure that was almost always performed in Ontario. Nurse Robinson, a nurse practitioner with the TWH Bariatric Program, testified that 99% of the information in the education session was about the Roux-en-Y procedure. The impact of surgery on Mrs. Coffey's prior fundoplication was not part of any discussion during orientation.

[42] After attending these sessions, Mrs. Coffey was assigned to Dr. Cyriac and was given an appointment with him on November 26, 2010.

[43] Mrs. Coffey asked her daughter to come along to this appointment because it was an important decision and she wanted an "extra pair of eyes and ears, just to be on the safe side so [she] had assurance that [she] didn't miss anything."

[44] Ms. Coffey was educated at the University of Toronto and obtained a postgraduate degree in publishing. Since graduating she has been employed with a publisher.

[45] Ms. Coffey understood that her mother wanted her present at the appointment because a Roux-en-Y gastric bypass is life-changing surgery and it was a "big deal to her mom." Her mother wanted her to be an advocate for her and to make sure that her questions were answered.

[46] Prior to the appointment, Mrs. Coffey told her daughter about the 2001 Marcus Surgery. Mrs. Coffey was concerned that the anti-reflux surgery not be touched because it had granted her so much relief; she did not want to risk having the acid reflux return.

[47] The preoperative consultation with Dr. Cyriac took place on November 26, 2010. Ms. Coffey was with her mother throughout the consultation. Both Mrs. Coffey and her daughter testified based on their clear recollection of this meeting.

[48] Since November of 2010, Dr. Cyriac has seen thousands of other patients. On cross‑examination, Dr. Cyriac agreed that he had no recollection of the appointment whatsoever. He did not remember any of the words spoken by Mrs. Coffey or her daughter. He could not recall anything that he had said. He could testify only based on his notes and his usual practice. I agree with the Plaintiffs that his usual practice is of very limited value here since he had never before recommended or performed a sleeve gastrectomy with a takedown of a fundoplication.

[49] Ms. Coffey testified that her mother told Dr. Cyriac about the 2001 Marcus Surgery. Her mother referred to it as a hiatus hernia repair that had stopped her acid reflux. Dr. Cyriac confirmed that he understood that Ms. Coffey referred to the anti-reflux surgery as a hiatus hernia repair. Mrs. Coffey told Dr. Cyriac: "the only thing I want you to be certain about is I will not have this surgery done if you do not promise me you will not under any circumstances touch the hiatus hernia repair surgery that Dr. Marcus did for me in 2001, I will not have it done if you are touching it." Mrs. Coffey explained that she had terrible reflux and did not want it to come back. Mrs. Coffey recalls her daughter repeating the request: "Mom does not want you to have - or you to touch her hiatus hernia repair surgery that Dr. Marcus did."

[50] Ms. Coffey testified that she and her mother were clear with their instructions:

I think that we were as clear as we could have been. We understood it to be a hiatus hernia repair surgery that stopped acid reflux, and that's how we would have said it to Dr. Cyriac. And the important part was the acid reflux, and that's what she didn't want to come back, so we talked about the importance of the acid reflux.

[51] Ms. Coffey clearly recalls Dr. Cyriac's response: "Dr. Cyriac didn't address the acid reflux, but he said that he wouldn't be touching that prior surgery, and he said there may be some scar tissue that he would need to remove when he went in to do the sleeve, but he wouldn't be touching that surgery, but he didn't address the - he didn't talk about reflux." Ms. Coffey was certain about what Dr. Cyriac said and testified: "I'm positive. It was the most important thing to my mom and her decision to have the surgery. I'm positive."

[52] Dr. Cyriac denies that he promised that he would not touch the 2001 Marcus Surgery. However, he conceded that he may have told Mrs. Coffey and her daughter: "The hiatal hernia itself, the repair, we generally wouldn't have to touch anything."

[53] I agree that Dr. Cyriac's comment is likely at the heart of the disconnect between doctor and patient. Mrs. Coffey quite reasonably relied upon that statement in agreeing to proceed with the proposed elective surgery.

[54] Dr. Cyriac never explained what a fundoplication was or that he was going to take it down. He told them: "the only thing I may do in addition is remove some scar tissue that may have been caused around the area." In cross-examination, when referring to the takedown of the wrap, Ms. Coffey said: "I was at that meeting and I never heard him say that. And I was listening intently since that was my purpose for being there."

[55] Dr. Cyriac agrees that he used pictures that did not show a fundoplication or its undoing.

[56] Dr. Cyriac did not record in his medical records that he told Mrs. Coffey that he was going to take down the fundoplication or that he was going to reverse the 2001 Marcus Surgery. There is no notation of this in his contemporaneous notes for that appointment or in his consultation letter to Mrs. Coffey's family physician, who he acknowledges to be the "quarterback" of Mrs. Coffey's treatment team. There is no note that Dr. Cyriac discussed the pros and cons of taking down the fundoplication with Mrs. Coffey. There is no note documenting any discussion of her prior surgery.

[57] Dr. Cyriac testified that he told Mrs. Coffey about risks that he tells everybody about. Dr. Cyriac could not say whether he told Mrs. Coffey that she may return to the symptoms she had before the anti-reflux surgery with Dr. Marcus. Indeed, he agreed that he did not know what her symptoms were before the 2001 Marcus Surgery.

[58] Dr. Cyriac did not raise the possibility of having no surgery, despite agreeing that this was a reasonable option for Mrs. Coffey.

[59] At the end of the appointment, after Dr. Cyriac proposed an entirely different surgery from the one that Mrs. Coffey had been told about during the preoperative sessions, Dr. Cyriac presented Mrs. Coffey with a consent form to sign. Dr. Cyriac completed the form identifying the operation as "laparoscopic sleeve gastrectomy, possibly open." Although he was planning on taking down the surgical repair, Dr. Cyriac did not list the takedown of the fundoplication on the consent form.

[60] Dr. Cyriac agreed that the main parts of the operation should be listed.In his operative report, Dr. Cyriac set out the three important parts of this operation: (1) laparoscopic gastric sleeve gastrectomy; (2) lysis of extensive abdominal adhesions; and (3) takedown of previous fundoplication.

[61] Under cross-examination, Dr. Cyriac had the following exchange with counsel:

Q. Well, Doctor, one of the reasons we're taught to write important things down before we get someone's signature on it is to make sure they've understood what you think they understand, that is a central purpose of writing down something that's important that you're asking a client to sign, isn't that right?

A. Well, that's the consent, yes. I guess that is right, yes.

[62] I agree that, to the extent that Mrs. and Ms. Coffey's recollections differ from Dr. Cyriac's with respect to the November 26, 2010 appointment, Mrs. and Ms. Coffey's testimony­­—and Ms. Coffey's in particular—should be preferred. This was an important appointment. Ms. Coffey was specifically asked by her mother to attend and look out for her. Ms. Coffey was told about the 2001 Marcus Surgery in advance of the appointment and the importance of that repair remaining untouched. There is good reason they would recall important details of the meeting, particularly whether Dr. Cyriac explained that the fundoplication was to be taken down.

[63] With no specific recollection, Dr. Cyriac only had his notes to rely upon. Dr. Cyriac was aware that medical records are important legal documents and that he had a duty to make records of his involvement in Mrs. Coffey's care. He knew that he had a duty to make such records clear, accurate, complete, and true.

[64] Nowhere in Dr. Cyriac's notes is it recorded that he explained to Mrs. and Ms. Coffey that he would be taking down the prior fundoplication. A negative inference can be drawn when a physician's record-keeping is lacking,[^5] and such an inference is drawn here. In Wells (Litigation Guardian of) v. Paramsothy, the court found:

[The physician's] lack of proper medical records makes his evidence quite incredible… Because of the lack of charting of any information given to [the patient] and her consent, I am also of the view that she did not consent to the treatment of Haldol during that year.[^6]

[65] When records are incomplete, the court will generally favour the testimony of a plaintiff who has good reason to recall important information over a doctor for whom the interaction was just one of many in a busy practice. This was illustrated in Dale v. Munthali:

It is unfortunate that Dr. Munthali did not make careful notes. This was a routine house call to him and he did not hear of the death until notified by the College of Physicians and Surgeons some months later. On examination for discovery he said he did not hear of the death until served with the writ but he was clearly mistaken. Mrs. Dale's memory of the events leading up to her husband's death would, of course, be sharpened by the impact of his death. In retrospect this was not just a routine house call to her and I think she would tend to remember every detail of what occurred.[^7]

[66] Mrs. Coffey testified that, had Dr. Cyriac told her that he was going to touch or undo what Dr. Marcus had done, she would have walked out. She was not prepared to trade off the tremendous relief she had obtained from the anti-reflux surgery to lose weight. This is entirely believable and I accept her evidence.

[67] Ms. Coffey also confirmed several times that her mother would not have agreed to surgery if there was a possibility of the reflux coming back: "She wouldn't have taken it. She said, when we were going in, that she wouldn't have done the surgery if it was going to be touched at all, and that's why she wanted to make sure I knew how important it was to her." When asked in cross‑examination why she knew that her mother would have walked away from the surgery if there was an increased risk of acid reflux, Ms. Coffey said: "Because that was her primary concern. It was the reason that I was there and I know that if she had that choice, she would have walked away." I find Ms. Coffey's evidence to be entirely believable and I also accept her evidence.

[68] Dr. Cyriac indicated that he would obtain and review records relating to both Mrs. Coffey's prior procedure and her recent ulcerative colitis diagnosis and discuss Mrs. Coffey's case with his colleagues. Barring any new and contrary information, the plan was for Mrs. Coffey to undergo a sleeve gastrectomy.

[69] Dr. Cyriac submitted that Mrs. and Ms. Coffey's accounts of this appointment differ in several ways from the encounter reflected in his contemporaneous note and the one to which he testified. While there are some differences between Mrs. and Ms. Coffey's accounts, both testified that they clearly communicated to Dr. Cyriac that he was not to touch the 2001 Marcus Surgery in any way and that Dr. Cyriac promised he would not do so. Dr. Cyriac denies that such a discussion took place. I do not believe or accept Dr. Cyriac's evidence. He has no memory of his meeting or discussion with the Coffeys. I also draw a negative inference from the fact that Dr. Cyriac's notetaking is lacking and I use that negative inference to substantiate my opinion that Mrs. Coffey did not consent to Dr. Cyriac's surgery.

DR. CYRIAC'S CONSULTATION WITH Dr. AARTS

[70] After the November 26, 2010 appointment, Dr. Cyriac spoke to a colleague, Dr. Aarts, about the appropriateness of performing a sleeve gastrectomy or a gastric bypass. Dr. Cyriac did not remember the particulars of that conversation but was able to infer that Dr. Aarts agreed with his surgical plan.

[71] Dr. Aarts testified. She is Dr. Cyriac's bariatric surgery partner and they are friends. She does not remember her discussion with Dr. Cyriac and never saw Mrs. Coffey. In November 2010, Dr. Aarts had practised for just over two years and had even less experience than Dr. Cyriac. Prior to November 2010, Drs. Cyriac and Aarts had performed no more than ten sleeve gastrectomies between them. Neither had ever performed or assisted in performing a sleeve gastrectomy with a fundoplication takedown.

[72] The purpose of such discussions between colleagues is the sharing of expertise. The usual practice is for one surgeon to present the case to the other. If Dr. Aarts had concerns with Dr. Cyriac's proposed approach, he believes that she would have expressed them.

DR. CYRIAC'S SURGERY

[73] Dr. Gagner had two technical criticisms of Dr. Cyriac's surgery: the choice of the size of the stapler and the bougie used during surgery. Time was spent by the Plaintiffs on this issue to emphasise Dr. Cyriac's inexperience performing this particular revisionary procedure in 2010 and 2011. Dr. Gagner's opinion was that Dr. Cyriac's training and experience at that time were not adequate to recommend or perform a sleeve gastrectomy with a takedown of the fundoplication. I agree with this opinion.

[74] The planned procedure by Dr. Cyriac was revisionary surgery. Having only performed six sleeve gastrectomies at the time of Mrs. Coffey's surgery, Dr. Cyriac could not and did not have the experience to recommend or proceed with a sleeve gastrectomy with a takedown of the fundoplication.

[75] There was some debate about the learning curve requirement. However, even using Dr. Jackson's evidence, 25 routine surgeries would have been required (Dr. Gagner put this number closer to 100). Dr. Cyriac was nowhere near the required learning curve when he recommended and performed Mrs. Coffey's revisionary surgery.

[76] In cross-examination, Dr. Gagner described that Dr. Cyriac's surgery set up the "perfect storm" for the return of Mrs. Coffey's debilitating reflux:

It's a storm, you know? It's the - these are the two best things to happen for the perfect storm, and that's what happened in her. That's why it was a contraindication to do the sleeve in someone who had a fundoplication in which you were planning to undo.

[77] Mrs. Coffey testified that following the surgery Dr. Cyriac and his team discussed how it had gone with her family. Ms. Coffey's evidence was that her mother asked Dr. Cyriac to confirm that he had just taken down some scar tissue and had not touched the 2001 Marcus Surgery. He confirmed that he did not touch the 2001 Marcus Surgery. Dr. Cyriac denies saying this and submits that this evidence does not make sense. His operative note mentions the takedown of the fundoplication and was sent to Mrs. Coffey's family doctor. I do not need to comment any further on Dr. Cyriac's view of the Plaintiffs' evidence as I accept and believe that Mrs. Coffey did not learn about the takedown of the fundoplication until she met with Dr. Marcus on January 12, 2012.

FOLLOW UP APPOINTMENT WITH DR. ORZECH ON FEBRUARY 18, 2011

[78] There was back and forth in counsel's written submissions regarding what the court should take from Dr. Orzech's testimony. Being that I have found that Mrs. Coffey did not know about the takedown of the fundoplication until she met with Dr. Marcus on January 11, 2012, I do not need to engage in a dissection of his evidence and will set out the main relevant points.

[79] Dr. Cyriac relies on Dr. Orzech's note and evidence to confirm that Mrs. Coffey knew on February 18, 2011 that her fundoplication had been taken down.

[80] On February 18, 2011, Dr. Orzech (at that time a resident) saw Mrs. Coffey in a follow-up appointment.

[81] When testifying, Dr. Orzech had no recollection of Mrs. Coffey or the appointment and had to rely on his dictated note. Dr. Orzech initially testified that he believed Mrs. Coffey had told him that she was experiencing discomfort with swallowing that was in keeping with the type of GERD she had experienced prior to the operation and that she felt that "the takedown of her wrap may be contributing to this."

[82] On cross-examination, Dr. Orzech conceded that in retrospect his note was "immature." He confirmed that his note had a pattern of combining patient provided history and physician assessment in the same section. He conceded that he could not be sure that Mrs. Coffey told him that she felt her wrap might be contributing to her new GERD symptoms: "From nine years ago, no, I can't say for sure."

[83] He also conceded that most patients would not be expected to understand the connection between the takedown of a fundoplication and increasing GERD and that he had read Dr. Cyriac's operative note, which described the taking down of the fundoplication. He agreed that at the time he likely knew that taking down a Nissen fundoplication could lead to reflux. As such, the cause of Mrs. Coffey's symptoms is more likely than not a thought expressed by Dr. Orzech, rather than a record of what Mrs. Coffey told him.

POSTOPERATIVE REFLUX AND THE RETURN TO DR. MARCUS

[84] After Dr. Cyriac's surgery, Mrs. Coffey had difficulty eating. Her daughter testified:

She would have this weird thing where she would take a sip of water or it could be a bite of food, and she would - it would almost like get stuck and she'd have to bend over like the laundry tub and it would just come back up, like it wasn't like vomiting, it wasn't any kind of forceful action, it would just kind of pour back out, and that's a little bit alarming, so that's the one thing I remember from that.

[85] The evidence taken as a whole, and which I accept, reflects that there was likely a pattern of waxing and waning of symptoms and that this was much worse by late 2011. On November 24, 2011, Mrs. Coffey returned to see Dr. Cyriac, complaining about "still having some reflux." Dr. Cyriac noted that she was going to see her gastroenterologist regarding the symptoms.

[86] On December 12, 2011, Mrs. Coffey woke up at 5:30 a.m. from a deep sleep. She felt like something came up from her stomach and got into her lungs. She described the feeling as "the most burning thing, it literally felt like somebody had slit my throat, it's the only way I can describe it, but it burned so bad, I felt like I was drowning almost, like I couldn't get my breath. I didn't think I was ever going to breathe again. It's the worst." The experience was terrifying.

[87] Mr. Coffey rushed Mrs. Coffey to the hospital where the emergency doctor told her that something had gone wrong with her surgery and she should follow up with her family doctor. She did so the same day and her family physician arranged for her to see Dr. Marcus.

[88] Mrs. Coffey saw Dr. Marcus on January 12, 2012. His note states that Mrs. Coffey had been referred with a one-year history of progressively worsening acid reflux or heartburn and regurgitation of fluid into her mouth. Mrs. Coffey reported the choking and burning feeling and the December 12, 2011 incident, when she regurgitated bile causing her to wake up short of breath, coughing, and choking with a burning in her neck. Her situation was significantly worse than when she had seen Dr. Marcus in 2001.

[89] In reviewing the medical records, it became apparent to Dr. Marcus that the anti-reflux surgery he had performed in 2001 had been reversed. He explained:

… The reason being is because her esophagus, there was a mechanical failure in the lower esophageal sphincter, that area that acts like a valve. That wasn't going to get better on its own. The reason she was better after my operation is because I had fixed or improved on that mechanical failure of her lower esophagus. So she didn't have reflux anymore because the part that was supposed to function was doing what it was supposed to do. Now, if you remove that repair, then you're going to give her that mechanical failure back again so she's going to have reflux. I mean it's not rocket science.

[90] Dr. Marcus told Mrs. Coffey that Dr. Cyriac had undone everything accomplished during the 2001 Marcus Surgery. Mrs. Coffey did not initially believe Dr. Marcus. He then showed her a copy of Dr. Cyriac's operative report and underlined the part that indicated that the fundoplication had been taken down. This was the first time that anyone told Mrs. Coffey that the 2001 Marcus Surgery had been undone.

[91] Ms. Coffey confirmed this information and witnessed Mrs. Coffey's contemporaneous shock at hearing the news. The first time that Mr. Coffey heard that the fundoplication had been taken down was from his wife after she returned home from seeing Dr. Marcus.

[92] Dr. Marcus concluded that Mrs. Coffey's symptoms could not be fixed with conservative measures. However, prior to recommending any treatment, Dr. Marcus performed several tests and examinations and reviewed Mrs. Coffey's various medical records.

[93] Mrs. Coffey returned to see Dr. Marcus on February 22, 2011. Because the fundus had been removed by Dr. Cyriac, there was insufficient stomach left to repeat a fundoplication. Dr. Marcus recommended that Mrs. Coffey's stomach be removed (the "completion gastrectomy"). He explained:

[B]ecause the stomach secretes acid. Even though there's less of it there, it's still creating acid which is going to reflux. And also she now has a very small reservoir, so when food goes in there, it's going to sit longer, and the acid will tend to come up easier

The basic problem was that she had a mechanical failure of the lower part of her esophagus. I could not address that with another operation. I couldn't make that valve area better, so I could only try and reduce what is coming up to be less irritating, and hopefully even stop it.

All Dr. Marcus felt he could do was to make the best of a bad situation.

[94] During cross-examination, it was suggested generally that Dr. Marcus should not have proceeded with surgery to remove Mrs. Coffey's stomach. Although this suggestion was never put directly to Dr. Marcus, he explained why he performed the surgery:

Well, the stomach, the remainder of her stomach was not doing her any specific good, it was only doing her harm. It was still manufacturing acid. She was getting regurgitation from her stomach into her esophagus with acid as well as bile which came from her - through her intestine into her stomach. So in my attempt to improve her symptoms, I was trying to eliminate the manufacture or the acid that was present in where she was regurgitating, and also to some extent that small bit of the stomach was also causing or worsening her regurgitation because it was no longer an intact stomach, wasn't behaving normally, wasn't getting rid of food and acid normally, so that was part of my decision to remove the remainder of her stomach. There wasn't a lot of it left.

[95] Mrs. Coffey knew that this was major surgery but agreed to proceed because of the severity of her symptoms. She said: "I trusted Dr. Marcus. He gave me life after the hell I went through, whatever you want to call it, for 10 years, and I had 10 years of relief."

[96] I want to stress a few things at this point. As set out above, I accept Mrs. Coffey's evidence that she first learned of the wrap being taken down by Dr. Cyriac from Dr. Marcus on January 12, 2012. This knowledge was acquired only on that date. This eliminates the limitation defence; the Plaintiffs' claim was brought in time. This is addressed in greater detail below.

[97] Further, I am not impressed by the challenge regarding Dr. Marcus's 2012 surgery raised mainly in written submissions. Dr. Marcus was not directly challenged on this; other than some comments by Drs. Cyriac and Jackson, there was no expert opinion evidence that the 2012 surgery fell below the standard of care; and nor was Dr. Marcus added as a third party by Dr. Cyriac, which point I expand on below. I accept Dr. Marcus's evidence that his surgery was necessary and that his actions were taken "to make the best of a bad situation."

LIMITATION PERIOD

[98] I will now expand upon my finding that the limitation defence fails. I accept Mrs. Coffey's evidence, supported by the evidence of her daughter and husband, about her shock after being told by Dr. Marcus that Dr. Cyriac had taken down the wrap that had provided her so much relief following the 2001 Marcus Surgery.

[99] Dr. Cyriac devotes some 74 paragraphs on pages 46 to 64 of his written submissions to the presumption under the Limitations Act, 2002[^8] (the "Limitations Act"); the interpretation of the presumption in the case law; his view that Mrs. Coffey's claim was discovered or discoverable prior to January 2, 2012; that the Plaintiffs have failed to establish that Mrs. Coffey did not discover her claim until January 2, 2012; and that her claim was discoverable upon reasonable diligence. Dr. Cyriac submits that Mrs. Coffey was aware of her claim either by February 18, 2011, the date of her follow-up appointment with Dr. Orzech, or December 12, 2011, the date of her emergency hospital visit.

[100] The evidence from Dr. Gilic, the emergency doctor (in his medical note) and Dr. Orzech (in his medical note and through viva voce evidence) has been thoroughly dissected by both the Plaintiffs and Dr. Cyriac.

[101] Dr. Gilic did not testify and his note regarding what was discussed with Mrs. Coffey is not admissible other than as part of the narrative. To speculate as to the meaning of his note, which contains various question marks, is improper. I suspect that, had the jury remained for the duration of the trial, the note would not have been part of any medical brief presented to them. In any event, Mrs. Coffey confirmed that she was told by Dr. Gilic that something had gone wrong with her surgery with Dr. Cyriac. She followed up with her family doctor immediately and was referred to Dr. Marcus for an appointment on January 12, 2012.

[102] Both the Plaintiffs and Dr. Cyriac put their spin on Dr. Orzech's testimony. Dr. Orzech has no memory of the appointment with Mrs. Coffey, which is not surprising because it took place nine years ago. However, he conceded in cross-examination that his note was "immature." It had a pattern of following patient provided history with physician assessment in the same section. He also conceded that most patients would not be expected to understand the connection between the takedown of a fundoplication and increasing GERD. Dr. Orzech agreed that when he met with Mrs. Coffey he had already read the operative note from Dr. Cyriac describing the takedown of the fundoplication. He agreed that he likely knew that taking down a Nissen fundoplication could lead to reflux.

[103] I am not satisfied that the evidence from Dr. Orzech or the inadmissible note from Dr. Gilic provide satisfactory proof that Mrs. Coffey had knowledge that her fundoplication had been taken down before the January 12, 2012 appointment with Dr. Marcus. I accept, as did Dr. Cyriac, that Mrs. Coffey referred to her 2001 Marcus Surgery as a hiatus hernia repair; she has a grade 12 education and no medical training. Dr. Cyriac wrote in his consultation report: "I do not have the report of what the operation she has had but I assume that is a Nissen Fundoplication."

[104] After leaving the emergency department, Mrs. Coffey attended with her family doctor immediately and got a referral to see Dr. Marcus on January 12, 2012. The Coffeys could have done nothing sooner than January 12, 2012, as that was the date of the referral. The Plaintiffs have overcome the presumption in the Limitations Act. They discovered the wrong that had been done by Dr. Cyriac on January 12, 2012. Mrs. Coffey's claim was not discoverable earlier by exercising any greater "reasonable diligence." There was nothing more that she could or should have done.

[105] It was only when Mrs. Coffey followed her family doctor's advice and attended with Dr. Marcus that she learned that the fundoplication had been taken down by Dr. Cyriac. I accept and believe the evidence of the Coffeys. They did not know about the takedown of the wrap until then. The limitation period began to toll with that knowledge on that date. As a result, the statement of claim was issued within time and the limitation period defence fails.

INFORMED CONSENT

[106] Individuals have a fundamental right to make their own healthcare decisions, which is protected in negligence law through the doctrine of informed consent. In Hollis v. Dow Corning Corp., La Forest J. for the Supreme Court of Canada stated: "the doctrine of 'informed consent' dictates that every individual has a right to know what risks are involved in undergoing or foregoing medical treatment and a concomitant right to make meaningful decisions based on a full understanding of those risks."[^9] This includes the right to refuse unwanted medical treatment.[^10]

[107] In Van Dyke v. Grey Bruce Regional Health Centre, the Ontario Court of Appeal held that the ultimate decision of whether to proceed with a particular treatment rests with the patient, not the doctor. The doctor must equip the patient with the information necessary to make an informed choice:

The ultimate decision whether to proceed with a particular treatment rests with the patient and not the doctor. The doctor must equip the patient with the information necessary to make an informed choice. Where there is more than one medically reasonable treatment and the risk/benefit analysis engaged by the alternatives involves different considerations, a reasonable person would want to know about the alternatives and would want the assistance of the doctor's risk/benefit analysis of the various possible treatments before deciding whether to proceed with a specific treatment. Put differently, a reasonable person could not make an informed decision to proceed with treatment "A" if that patient was unaware of the risks and benefits associated with treatment "B", a medically appropriate alternative treatment.

[108] Our courts have appropriately placed the obligation on physicians to provide their patients with all the material information they need to consider a proposed treatment. As a matter of law, doctors must, without being questioned, disclose "the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation."[^11]

[109] In Ontario, the duty to obtain informed consent is codified in the Health Care Consent Act, which imposes a legal duty on physicians to obtain said consent prior to undertaking any treatment of a patient.[^12] The Health Care Consent Act specifies that a consent to treatment is only "informed" if the patient is told about:

• The nature of the treatment;

• The expected benefits of the treatment;

• The material risks of the treatment;

• The material side effects of the treatment;

• Alternative courses of action; and

• The likely consequences of not having the treatment.

[110] Under negligence principles, the test to be employed in analysing the quality and quantity of information given to a patient is not the professional medical standard but the reasonable patient standard.[^13] 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. A failure to make full disclosure of material risks constitutes negligence.[^14] Information is much more likely to be classified as material where the procedure is elective.[^15]

[111] After establishing a failure to disclose material information, the plaintiff must demonstrate on a balance of probabilities that they would not have gone ahead with the operation using the so‑called "modified objective test."[^16] The subjective component of this test takes into account factors unique to the patient. The objective component is based on what a reasonable person in the patient's position would have done.[^17] Courts are to consider the issue objectively based on the "particular concerns" of the patient and any "special considerations affecting the particular patient."[^18]

[112] In Videto v. Kenny, the Ontario Court of Appeal summarised the duty of disclosure in accordance with the following principles:

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

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

• A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences, such as paralysis or even death, then it should be treated as a material risk and should be disclosed.

• The patient is entitled to an explanation of the nature of the operation and its gravity.

• Subject to the above requirements, dangers inherent in any operation, such as the dangers of anesthetic or the risks of infection, do not have to be disclosed.

• The scope of the duty of disclosure and whether it has been breached must be decided in relation to the circumstances of each case.

• The emotional condition of the patient and the patient's apprehension and reluctance to undergo the operation may, in certain cases, justify the surgeon withholding or generalising information he would otherwise be required to be more specific about.

• 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.[^19]

[113] Dr. Gagner testified that Dr. Cyriac had an obligation to tell Mrs. Coffey that she would have reflux all the time if the fundoplication was undone. Further, regarding the sleeve procedure, Dr. Cyriac had an obligation to tell Mrs. Coffey that removing the left side of the stomach is permanent and it cannot be put back together.

[114] Mrs. Coffey specifically directed Dr. Cyriac to not touch the 2001 Marcus Surgery. This was supported by the evidence from her daughter. I have already set out that I believe and accept this evidence from Mrs. and Ms. Coffey.

[115] I agree that Dr. Cyriac failed to adequately inform Mrs. Coffey of the nature of and risks associated with the surgery. In particular, he failed to advise Mrs. Coffey that the surgery required that the fundoplication be taken down and of the accompanying risk of reflux return. He further failed to discuss the pros and cons of doing nothing.

[116] Dr. Cyriac conceded that he had a duty to provide all the important information to Mrs. Coffey so that she could make an informed decision about whether she believed that this elective weight loss surgery was in her overall best interests. He also agreed that he had a duty to clearly communicate with Mrs. Coffey at all times, to carefully explain the risk and benefits of the procedure he was recommending; to carefully explain all reasonable alternatives, and to take reasonable steps to ensure Mrs. Coffey understood what he was communicating. Dr. Cyriac acknowledged the duty to explain to Mrs. Coffey exactly how her previous surgery would be impacted by anything that he did.

[117] Dr. Jackson agreed that if Mrs. Coffey instructed Dr. Cyriac not to touch the 2001 Marcus surgery, then Dr. Cyriac failed to meet the standard of care. He also agreed that the discussion of long-term risks was not well documented by Dr. Cyriac.

[118] I find that a reasonable person in Mrs. Coffey's position would want to know if their prior operation was going to be reversed. The prior procedure was major surgery to correct a serious reflux issue. Dr. Cyriac's surgery was proposed elective surgery. Any patient would need this information to properly weigh the pros and cons of proceeding with Dr. Cyriac's surgery or not having any surgery at all.

[119] Dr. Cyriac did not provide the appropriate information. Mrs. and Ms. Coffey's evidence was straightforward and unequivocal. There was no discussion about reversing the 2001 Marcus Surgery or the consequences of so doing. Dr. Cyriac had no recollection of any such discussion and there is no notation in the medical records that it was discussed.

[120] Dr. Gagner indicated that the standard of practise required Dr. Cyriac to record that he told Mrs. Coffey that he was going to take down the wrap. The College of Physicians and Surgeons of Ontario requires physicians to document information that goes into the decision-making process. Even Dr. Jackson found that there was ambiguity in the note. He testified that there was "uncertainty around what exactly was done back in 2001."

[121] It was apparent even to Dr. Jackson that "there must have been some miscommunication about exactly either what Dr. Cyriac or Mrs. Coffey felt was actually done [referring to the 2001 Marcus Surgery]." Dr. Jackson confirmed that when providing information to patients it is important to be clear, accurate, and complete. To the extent of any misunderstanding, the fault lies with Dr. Cyriac, who had the duty to clearly communicate with Mrs. Coffey.

[122] Had Dr. Cyriac adequately disclosed that he would be undoing the work of Dr. Marcus, I accept that Mrs. Coffey would not have agreed to go forward with the operation. This was elective surgery. With it, Mrs. Coffey may or may not have maintained substantial weight loss over time. Her life was not at imminent risk and the surgery was not required. Mrs. Coffey testified, and I accept, that she was not prepared to lose the relief she had obtained from the 2001 Marcus Surgery for the possibility of potential health benefits from the bariatric surgery.

[123] There was no evidence of any patient with a prior fundoplication whose GERD was controlled by medication who had agreed to undergo such a surgery. It is hard to imagine anyone consenting to a procedure with a surgeon who had never performed the recommended revisionary surgery. But certainly, knowing that they would likely lose the benefit of a repair created as a result of major surgery, I find that no reasonable person would have gone ahead. Many patients elect not to proceed with bariatric surgery. Dr. Cyriac's evidence was that the dropout rate in the bariatric program generally ranged from 50-60%. The evidence of Nurse Robinson was that it was at least one in three.

[124] As above, Dr. Cyriac admits he had a duty to carefully explain all reasonable alternatives, to take reasonable steps to ensure Mrs. Coffey understood what he was communicating, and to explain to Mrs. Coffey exactly how her previous surgery would be impacted by anything that he did. These are unchallenged admissions of the defendant. Dr. Cyriac did not have Mrs. Coffey's informed consent to proceed.

STANDARD OF CARE

[125] The law relating to standard of care was set out in Watson v. Dr. Soon and includes the following:

• The onus is on the plaintiff to show that the physician has breached the standard of care of a reasonable and prudent physician of the same experience and standing, having regard to all of the circumstances of the case.

• The appropriate standard of care is determined by the trier of fact. Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.

• Physicians are not held to the standard of perfection. At law, a physician's conduct will be judged in light of the knowledge they had or ought to have reasonably possessed at the time of the alleged act or omission.

• The court must look at the steps taken and ask whether they conformed to what would be reasonably expected of a similarly situated medical professional.

• The plaintiff's onus is to prove more than an error in judgment. They must establish an act or omission that rises to the level of unskillfulness, carelessness, or lack of knowledge. An error of judgment does not amount to negligence where a medical professional appropriately applies clinical judgment.

• Where, however, a physician fails to avail themselves of relevant clinical information or fails to obtain relevant consultations or test results, the failure to do so is not an exercise of judgment at all, but rather constitutes negligence.

• An unfortunate outcome does not constitute proof of negligence. Courts should be careful not to rely on the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are only apparent after the fact.[^20]

[126] Other relevant principles of law in this case include the following:

• The standard of care must be that which is "ordinarily possessed by practitioners in similar communities in similar cases" at the relevant time.[^21]

• To opine on the standard of care, experts must be appropriately positioned.[^22] As this Court held in Anderson v. Nowaczynski, expert opinion on the standard of care must be provided "through the eyes of a physician of the same background and training" as the defendant.[^23]

• Dr. Cyriac has raised the issue of the geographical location of the experts. This issue was dealt with in Kurdina v. Dief, in which the plaintiff appealed a summary judgment decision dismissing claims for negligence against two psychiatrists. The Ontario Court of Appeal dismissed the appeal as the experts the plaintiff offered were not qualified to practise in Ontario:

None of the deponents the appellant offered were psychiatrists qualified to practise in Ontario or qualified to provide expert evidence on the applicable standard of care in Ontario. Without any evidence that the respondents had fallen below the standard of care that applies to them, the appellant's claim had no hope of success. Both actions were properly dismissed by way of summary judgment.[^24]

[127] I have specifically dealt with the issue of the geographical location of the experts in this case above in "Expert Evidence."

The Plaintiffs' Position

[128] The Plaintiffs' submissions include the following:

• Dr. Cyriac was negligent in his care and treatment of Mrs. Coffey in that:

(i) he failed to obtain her informed consent for the bariatric surgery; and

(ii) he lacked the education, training, and experience to have recommended or performed the particular bariatric surgery that he performed on Mrs. Coffey.

• Dr. Cyriac acknowledged that he had a duty to do no harm and to act in Mrs. Coffey's best interests, not his own. He agreed that this duty is not supplanted even when a physician wants to gain experience doing a particular surgery. Dr. Cyriac confirmed that every patient is different, and that the doctor must make sure that he is performing the right operation for the right patient.

• Dr. Gagner testified that "it was substandard of care to do a sleeve gastrectomy in someone who had a fundoplication and undoing the fundoplication at that time." It was "totally wrong." When a wrap is taken down, the symptoms of GERD come back and could be worse. Dr. Gagner reported that there is no literature recommending the performance of a sleeve gastrectomy following a fundoplication. No literature supporting this surgical plan was produced by Drs. Cyriac or Jackson.

• Leaving aside that it was the wrong surgery, Dr. Gagner was also of the opinion that Dr. Cyriac should not have attempted a revisionary sleeve gastrectomy due to his lack of education, training, and experience at that time. Having only performed six prior sleeve gastrectomies, Dr. Cyriac was still early on the learning curve by any definition. Dr. Jackson testified that 25 routine sleeve gastrectomies were required and Dr. Gagner testified that Dr. Cyriac should have completed closer to 100 routine sleeve gastrectomies before moving on to more complex, revisionary surgery. This showed poor judgment and fell below the standard of care.

The Defendant's Position

[129] Dr. Cyriac's submissions include the following:

• There were two surgical options for Mrs. Coffey: the sleeve gastrectomy and the Roux-en-Y gastric bypass. Dr. Cyriac's choice of the sleeve gastrectomy was reasonable given Mrs. Coffey's particular presentation and circumstances.

• Dr. Cyriac agreed that as a general proposition patients receive a Roux-en-Y gastric bypass unless there is a reason to perform a sleeve gastrectomy. Two factors specific to Mrs. Coffey's history and circumstances made the sleeve the more appropriate choice: the fact Mrs. Coffey was taking NSAIDs and Mrs. Coffey's recent findings suggestive of IBD for which she was receiving treatment. Dr. Jackson supported Dr. Cyriac's reasoning.

Analysis

[130] The use of NSAIDs and findings suggestive of IBD as being contraindications to the Roux‑en-Y gastric bypass were set out in detail in Dr. Cyriac's written submissions. At the end of the day, this was not really an issue. Dr. Cyriac proceeded with the sleeve gastrectomy in the face of a prior fundoplication without Mrs. Coffey's consent and without the education, training, and experience to recommend or perform that surgery at that time in his career. No surgery should have been performed on Mrs. Coffey, especially following Dr. Cyriac's discussion with Mrs. and Ms. Coffey that Mrs. Coffey did not want the 2001 Marcus Surgery affected.

[131] Dr. Cyriac breached the standard of care in both regards.

CAUSATION

[132] Even if a physician is found to have breached the applicable standard of care, a plaintiff's claim will fail unless she can establish that the breach of the standard caused her injuries. The test for causation is the "but for" test;[^25] the plaintiff must show on a balance of probabilities that but for the defendant's negligent act the injury would not have occurred.[^26] This test is not to be applied too rigidly. It is a factual inquiry that should be assessed using ordinary common sense.[^27]

[133] The plaintiff bears the burden of proving causation on a balance of probabilities.[^28] If the plaintiff cannot show that a breach of the standard of care caused the injury on a balance of probabilities, the physician is not liable.

[134] The mere possibility of a causal connection between the alleged negligence and the damage caused is insufficient. It is not enough for the plaintiff to speculate, or to ask the trier of fact to speculate, about what could have happened but for the physician's actions. The plaintiff must lead specific evidence to establish on a balance of probabilities that but for the physician's alleged negligence a better or different outcome would have resulted.[^29] As the Ontario Court of Appeal stated in Rothwell v. Raes: "the onus is not met simply by demonstrating that there is the possibility of some causal connection."[^30]

[135] Dr. Cyriac has indirectly raised the issue of an intervening medical care issue in his written submissions, which is related to the foreseeability requirement.

[136] In tort, an intervening medical care issue can arise in one of two ways. First, where the intervening medical treatment is not negligent but causes further injury, the original tortfeasor is liable for the entire loss on the basis that medical treatment is a foreseeable consequence of injuring an individual. Second, where the intervening medical treatment is also negligent, the court in Papp et al. v. Leclerc set out the following with respect to foreseeability:

Every tortfeasor causing injury to a person placing him in the position of seeking medical or hospital help, must assume the inherent risks of complications, bona fide medical error or misadventure, and they are reasonably foreseeable and not too remote… It is for the defendant to prove that some new act rendering another person liable has broken the chain of causation.[^31]

[137] Also discussed in Paap v. Leclerc is novus actus interveniens, where it is claimed that the chain of causation is broken by the intervening act of a third party (in this case Dr. Marcus). In such a case, the onus is on the defendant to establish negligence on the part of the third party.

[138] A plaintiff must also prove that his or her injury was caused in law, that is that it was not too remote from the defendant's breach. As the Supreme Court of Canada explained in Saadati v. Moorhead: "even where a duty of care, a breach, damage and factual causation are established, there remains the pertinent threshold question of legal causation, or remoteness."[^32]

[139] The test for whether a plaintiff's injury is too remote from the defendant's breach of the standard of care was adopted into Canadian law from the Privy Council's decision in The Wagon Mound (No. 1).[^33] That case holds that an injury that is factually caused by negligent conduct is not too remote if the injury was a reasonably foreseeable consequence of that conduct.

[140] The Supreme Court of Canada clarified that an injury is reasonably foreseeable—and thus not too remote—if there was a "real risk" of that injury flowing from the defendant's negligence. Put another way, the injury must be "one which would occur to the mind of a reasonable man in the position of the defendant … and which he would not brush aside as far-fetched."[^34]

Analysis

[141] Dr. Gagner testified that Mrs. Coffey's postoperative condition (reflux) was a predictable consequence of taking down the fundoplication. It was predictable that Mrs. Coffey would have increasingly severe acid reflux. Dr. Jackson agreed that most of Mrs. Coffey's functional issues were caused by the completion gastrectomy, which the Plaintiffs submit was a reasonably foreseeable consequence of Dr. Cyriac's negligence. I accept and rely upon the opinion evidence of Dr. Gagner that Mrs. Coffey's postoperative reflux was a predictable consequence of taking down the fundoplication.

[142] I do not accept Dr. Cyriac's submissions on causation and his theory that Dr. Marcus' surgery in 2012 was the cause of Mrs. Coffey's symptoms.

[143] The Plaintiffs have met the but for test using ordinary common sense. They have proven damages beyond a mere possibility or speculation. I accept the evidence adduced by the Plaintiffs on causation and find that they have established, on a balance of probabilities, that but for Dr. Cyriac's negligence a better or different outcome would have resulted.

[144] Dr. Cyriac submits that it was not foreseeable that Dr. Marcus would perform a completion gastrectomy to address the damage done by Dr. Cyriac in taking down the fundoplication and that there were other more conservative options that should have been tried. There is no legal support for his position. In fact, there is no support at all other than some opinions offered by Drs. Cyriac and Jackson. No admissible expert opinion evidence was offered from Dr. Cyriac on this issue.

[145] Novus actus interveniens was not pled and no expert report or witness opinion was offered to suggest that the actions of Dr. Marcus were negligent. It was open to Dr. Cyriac to file a third party claim naming Dr. Marcus and to obtain the opinion of a qualified thoracic surgeon opining that Dr. Marcus was negligent. Having failed to do either, it is not open to Dr. Cyriac to argue in his submissions that the care of Dr. Marcus was negligent.

[146] The only evidence on the issue of foreseeability called by the defence came from Drs. Cyriac and Jackson, who testified that they would not have predicted the chain of events that unfolded. The defence submits that Mrs. Coffey's injuries were caused by the 2012 completion gastrectomy, which was not reasonably foreseeable to Dr. Cyriac or any bariatric surgeon in 2010 or 2011 at the time of the alleged negligent conduct.

[147] I am satisfied that, but for the negligence of Dr. Cyriac, Mrs. Coffey would not have suffered the return of her GERD and the subsequent complete loss of her stomach. I believe that Mrs. Coffey's postoperative reflux was a reasonably foreseeable consequence of Dr. Cyriac's surgery and I reject the suggestion that any negative outcome suffered is attributable to Dr. Marcus. As such, the Plaintiffs have proven causation on a balance of probabilities.

GENERAL DAMAGES

[148] It is a basic principle that damages serve to put the plaintiff in only as good a position as she would have been absent the defendant's negligence. Damage awards reflect the loss that was in fact occasioned by the defendant:

With respect to liability, the principle is that the defendant is liable if his or her wrongful acts were a cause of injury even though they were not the only cause. The principle with respect to damages is that the defendant is not responsible for injury or loss that the plaintiff would have suffered even absent the defendant's wrongdoing.[^35]

[149] Where a plaintiff suffers from a preexisting condition that would inevitably result in the same injury as the one caused by the defendant's wrongdoing, the defendant is not responsible for the injury.[^36]

[150] These principles apply to pecuniary and non-pecuniary damagesand to both past and future loss claims. In fact, "if the point in time at which the natural degenerative processes probably would have resulted in the same level of disability that resulted from the accident falls before the date of trial, then there are no future damages to consider at all."[^37]

[151] The Plaintiffs have the onus of providing this Court with cogent evidence with which to assess damages. The Court cannot, and should not, award damages by filling evidentiary gaps in the Plaintiffs' case.[^38] There must be an evidentiary foundation for damages that are claimed.

The Plaintiffs' Position

[152] The Plaintiffs' submissions include the following:

• Before Dr. Cyriac's operation, Mrs. Coffey had a complete, functioning stomach and no symptoms of reflux. Today, she has no stomach and suffers from unremitting reflux and chronic pain. She has endured multiple operations and has developed abdominal hernias. Even Dr. Jackson agreed that the consequences to Mrs. Coffey have been horrific. A completion gastrectomy is typically associated with a "difficult quality of life postoperatively, including issues with bile reflux, dysphagia, difficulty eating, malnutrition, and pain (associated with large procedures) including abdominal pain."

• Mrs. Coffey is unable to eat normally and is nauseous most of the time. As a result, she is losing an unhealthy amount of weight.

• Mrs. Coffey has difficulty sleeping:

I'm scared to go to sleep because I lay down, even though I'm propped up with four pillows, most nights at - well, at least every other night I wake up with aspiration reflux. It's not nearly as severe as what it was before Dr. Marcus [removed her stomach], but I wake up and I do aspirate, and it's so scary. I hate it because literally I don't know how else to describe it, but it feels like somebody literally slits my throat. I'm scared. I'm scared one day I won't be able to wake up.

• Mrs. Coffey used to enjoy her everyday activities, including her hobbies of quilting, staining glass, knitting, and sewing. Today, she has trouble mustering the energy to do these things. Mr. Coffey said that his wife does not have the drive that she used to.

• Mrs. Coffey is a shadow of her former self, though she wants to do more and is hoping for a miracle:

I have the want to do them. I have the desire to do them. I have my dreams. I'm tired. I'm so tired, but I still have my dreams. I pray every day that there's going to be somebody come along that can fix me. I just want to be whole again. I don't know how else to describe it.

• The case of Kennedy v. Jackiewicz is instructive. Mrs. Kennedy suffered a bowel perforation after an ovary removal operation. Her colon was ultimately repaired but she was left with chronic pain and several secondary complications. She had extensive pelvic adhesions (i.e. scarring) from surgery. Like Mrs. Coffey, Mrs. Kennedy had preexisting health problems, including suspected fibromyalgia, but she had been coping effectively with them prior to the allegedly negligent surgery. The trial judge found:

I am satisfied on all the evidence that Mrs. Kennedy, as a result of the surgery, has sustained a substantial change in the degree of her pain and disability to the extent that while she was formerly able to manage her medical problems, and lead a relatively positive existence, she now has great difficulty in coping at all with her daily life.[^39]

General damages were assessed at $125,000 ($159,168 adjusted for inflation).[^40]

• Another case that is of assistance is Lindsay v. Freeman.[^41] Ms. Lindsay underwent a primary vertical banded gastroplasty and developed a leak of gastric contents. She was hospitalised for approximately six weeks and required several surgeries. The trial judge provisionally assessed general damages at $100,000 ($162,740 adjusted for inflation). Mrs. Lindsay did not appear to have any material preexisting conditions, nor did she have the chronic pain and permanent reflux from which Mrs. Coffey suffers.

• Arguably, Mrs. Coffey's complete loss of her stomach is a greater loss than those in the aforementioned cases. A reasonable assessment of general damages for Mrs. Coffey would be in the range of $160,000 to $200,000.

The Defendant's Position

[153] Dr. Cyriac submits that there is no evidentiary basis for this Court to award general damages. I do not agree with this submission. The Court has sufficient information and the evidentiary basis to award general damages.

[154] Dr. Cyriac's other submissions include the following:

• Specific evidence is required. Mrs. Coffey had serious health issues that have been resolved as a result of Dr. Cyriac's surgery and were only likely to worsen without it. Mrs. Coffey was morbidly obese and had sleep apnea, diabetes type 2, debilitating musculoskeletal pain, fibromyalgia, high cholesterol, and asthma. Following Dr. Cyriac's surgery, Mrs. Coffey has experienced resolution of or an improvement in all these things (Mrs. Coffey largely agrees with this). Dr. Cyriac submits that even if it is accepted that Mrs. Coffey is now experiencing other negative symptoms as a result of the surgery, she is better off than she would have been had the surgery not been performed. Since damages should not place Mrs. Coffey in a better position than she would have been in but for the alleged negligence, any award must be offset by the health benefits she enjoys as a result of the surgery.

• The decision of the Court of Queen's Bench of Alberta in Smith v. Giese is the most closely analogous case. That plaintiff was involved in a car accident that caused her to suffer esophageal reflux,[^42] which continued intermittently until the second of two corrective procedures was carried out two-and-a-half years later. Even after the second surgery, the plaintiff continued to suffer discomfort as a result of an abdominal hernia at the surgical site.[^43] The plaintiff's reflux forced her to stop working and prevented her from driving. The plaintiff was awarded $25,000 ($40,163.93 adjusted for inflation) in respect of her reflux, stress, anxiety, two further surgeries, and whiplash.

• It is not possible to meaningfully assess Mrs. Coffey's damages. However, if there was evidence that but for the surgery Mrs. Coffey would have remained in largely the same state as she was prior to the surgery—which the defence denies—the defence submits that reasonable damages for Mrs. Coffey would have been in the range of $35,000 to $45,000.

Damages Assessment

[155] Mrs. Coffey had preexisting medical problems that were managed by medications. It is not necessary for me to fill in any evidentiary gaps. She clearly testified that she would have chosen to remain overweight, with the accompanying health issues, than risk the return of significant, debilitating, and worsening reflux, as she has experienced after Dr. Cyriac's surgery. After meeting with Dr. Marcus, Mrs. Coffey underwent the complete removal of her stomach to deal with her unmitigating acid reflux. That loss has had a profound effect on her.

[156] I am satisfied on all the evidence that, as a result of Dr. Cyriac's surgery, Mrs. Coffey has sustained a substantial change in the degree of her pain and disability to the extent that, while she was formerly able to manage her problems, she now has difficulty coping with her daily life.

[157] I assess Mrs. Coffey's general damages at $150,000.

FAMILY LAW ACT DAMAGES

[158] Damages for loss of guidance, care, and companionship are governed under s. 61(2)(e) of the Family Law Act (the "FLA").[^44] They are assessed on a case-by-case basis.[^45] Opportunities to experience guidance, care, and companionship will be informed by whether relatives lived in the same home, or even the same city, as the main plaintiff. When a mother, father, or sibling does not live in the same city as their relative, damages will be reduced accordingly.[^46]

[159] In assessing damages for loss of care, guidance, and companionship under s. 61(2)(e) of the FLA, the court applies the following principles:

a) For a claim to succeed, there must be an actual loss of care, guidance, and companionship;

(i) "Guidance" includes such things as education, training, discipline, and moral teaching;[^47]

(ii) "Care" includes such things as feeding, clothing, cleaning, transporting, helping, and protecting another person;[^48] and

(iii) "Companionship" includes the joy of sharing experiences; it is the loss of rewards of association that flow from the family relationship.[^49]

b) No damages can be awarded for grief, sorrow, or mental anguish by reason of an injury sustained by a relative;

c) Each claim must be assessed on its particular facts, although a judge may have regard to:

(i) the age, mental, and physical condition of the claimant;

(ii) whether the injured party lived with the claimant and, if not, the frequency of family visits;

(iii) the intimacy and quality of the claimant's relationship with the injured party;

(iv) whether or not the claimant is emotionally self-sufficient; and

(v) the joint life expectancy of the claimant and the injured party (though this is not relevant to the matters in issue).[^50]

The Plaintiffs' Position

[160] The Plaintiffs' submissions include the following:

Mr. Coffey

• For Mr. and Mrs. Coffey, it was love at first sight. They have been married for over 40 years and have a very good marriage.

• Mr. Coffey worked for General Motors for just over 30 years and he retired in 2007.

• Mr. Coffey had always been interested in woodworking and he planned to spend more time with his hobby in retirement. He also wanted to work part-time doing work he enjoyed "to get out of the house."

• Mr. Coffey's dream for retirement has been taken from him. After every surgery, he has been needed to help his wife. Mr. Coffey had to stop working as a custodian, a job he loved, around May 2012 to help his wife with dog care and housework. Instead of pursuing his hobby of woodworking, he finds himself doing work his wife would normally have done.

• The Coffeys' intimate life is non-existent. Mr. Coffey explained how Dr. Cyriac's surgery has impacted his relationship with his wife:

Well, it's pretty - it's been very rough. Don't get me wrong guys, I do love her an awful lot, but I'd prefer to have her a little closer to me like in the bedroom sleeping, even if she's there and that, and we just cannot go out and do things like we used to do. We used to go for dinner once a week at least, and it's just not happening anymore because every time … she might eat something the size of a loonie and that'll be it. It's just, just not good.

The biggest impact is not having Pat the way she was. I always want her - I do, I do appreciate like when as you get older, things could happen, but I didn't expect this at all. Pat and I, we should - we should be doing a lot more together, and we aren't. … I just can't help her, and that's very infuriating. I just don't know. I'm doing everything I can to help her. She wants the dogs, I'm looking after the dogs to keep her, she loves those dogs, I love Pat…

• Mr. Coffey has experienced substantial loss of the companionship he used to have with his wife. Realistically, Mrs. Coffey will not be able to provide him with any care if he requires it. Reasonable compensation under s. 61(2) of the FLA would be $60,000.

Ms. Coffey

• Ms. Coffey has lost the maternal guidance and companionship she once enjoyed. Ms. Coffey and her mother have always been close and continue to speak every day. Now, Mrs. Coffey often cries. Ms. Coffey drives two hours each way at least twice a month to be with her mother and help out. Ms. Coffey feels that her relationship with her mother has reversed; she is now the parent to her mother.

• The aftermath of Dr. Cyriac's surgery has affected Ms. Coffey deeply. Reasonable compensation under s. 61(2) of the FLA would be $35,000.

The Defendant's Position

[161] Dr. Cyriac's submissions include the following:

Mr. Coffey

• The Plaintiffs submit that Mr. Coffey had wanted to spend more time with Mrs. Coffey and woodworking when he retired. However, since Mr. Coffey retired, he has taken a number of positions to keep busy and to socially interact with others. He continued to work part-time for nearly ten years after the surgery.

• Mr. Coffey is healthy and there was no evidence that his wife's condition has taken a toll on his health.

• FLA damages are for loss of care, guidance, and companionship. The evidence for such damages in the present case is limited. Mrs. Coffey had real health challenges prior to the surgery, and she continues to have health challenges now.

• For the reasons provided above, it is not possible to meaningfully assess Mr. Coffey's FLA damages. However, if there was evidence that but for the surgery Mr. Coffey's care, guidance, and companionship would have more or less remained the same as prior to the surgery­­—which the defence denies—the defence submits that reasonable compensation under the FLA would have been in the range of $20,000 to $30,000.

Ms. Coffey

• Ms. Coffey was already an adult at the time of the surgery. Her evidence was that she last lived full-time with her parents in 2003. Ms. Coffey continued to stay with her parents for the summers until 2007 and has not lived with them since.

• Ms. Coffey lives approximately two hours away from her parents in Toronto with her husband. Ms. Coffey testified to the increasing need to be a support for her mother, though such changes are natural as parents get older, particularly given Mrs. Coffey's extensive comorbidities prior to the surgery. Ms. Coffey's relationship with her mother is still close and they talk every day.

• For the reasons provided above, it is not possible to meaningfully assess Ms. Coffey's FLA damages. However, if there was evidence that but for the surgery Ms. Coffey's care, guidance, and companionship would have more or less remained the same as prior to the surgery—which the defence denies—the defence submits that reasonable compensation under the FLA would have been in the range of $5,000 to $7,500.

Family Law Act Damages Assessment

[162] I assess Mr. Coffey's FLA damages at $40,000 and Ms. Coffey's FLA damages at $20,000.

[163] Mr. Coffey's dreams for his retirement have been taken from him. He loved his part-time custodian job because of the social interaction it allowed. He can no longer work in that job because of his dog and household responsibilities. His intimate life with his wife is non-existent.

[164] Ms. Coffey has lost the guidance and companionship she once enjoyed with her mother, even though she no longer lives at home. She is now the parent in the relationship. She was actively involved in the decision-making process with Dr. Cyriac and with the events that followed.

DAMAGES FOR LOST SERVICES: DOG CARE AND HOUSEWORK

The Plaintiffs' Position

[165] The Plaintiffs' submissions include the following:

• Prior to Dr. Cyriac's surgery, Mrs. Coffey had health issues that impacted her functioning, the most significant being fibromyalgia and arthritis. She had good days and bad days. Over time she developed pacing strategies and was able to live a full life. She raised her daughter, looked after her husband, and kept a beautiful home.

• Mrs. Coffey has raised Newfoundland dogs for many years. She is passionate about her dogs, who are "everything to her. They're … more than just pets."

• In 1999, the Coffeys moved to a large split-level bungalow on seven acres of land, which includes a large, separate building and a pond for the dogs. The separate building includes a 200 square foot grooming area. The property has individual dog kennels and a running yard. Half of the basement is devoted to the dogs and contains whelping boxes, grooming supplies, and equipment. The walls are covered with ribbons from dog shows. The dogs are part of the Coffeys' family life.

• Mrs. Coffey was involved in regional dog clubs, participating in "Fun Days" with her dogs.

• Prior to Dr. Cyriac's surgery, Mrs. Coffey was primarily responsible for the care of her dogs. During this period, Mrs. Coffey had, on average, between eight and twelve dogs. She did all the grooming (i.e. bathing, drying, and trimming nails) and the feeding. Mr. Coffey helped with heavy work, such as lifting pails and water.

• Prior to Dr. Cyriac's surgery, Mrs. Coffey had good and bad days. She managed by pacing and taking breaks. On a good day, she spent about six hours taking care of the dogs. On bad days, she took her time with breaks and rest periods.

• Since the surgery, Mrs. Coffey has experienced a significant functional decline and is unable to perform the dog care she used to. Mrs. Coffey estimates that she can perform 20% of what she used to do with the dogs. Her daughter estimates 25%. Everyone agrees that much of the dog care has been taken up by Mr. Coffey.

• Ms. Coffey testified that her dad is picking up the slack with the dogs. Mr. Coffey said that the dogs require between four and five hours of work a day and that he is currently doing 90% of the work. Previously, he was doing very little of the dog care—10 to 15%.

• Mrs. Coffey's close friend, Ms. Borden, testified. They have known each other for a decade or more and regularly speak on the phone for an hour or so. Ms. Borden visits Mrs. Coffey four to six times a year, typically for several hours.

• Ms. Borden testified that before Dr. Cyriac's surgery Mrs. Coffey did almost everything with the dogs, including the grooming, feeding, and watering. Mrs. Coffey was always able to handle the dogs.

• Since Dr. Cyriac's surgery, Ms. Borden has noted a significant change in Mrs. Coffey's mood. Mrs. Coffey is more subdued and lacks her prior confidence. She is often "not very happy." Mr. Coffey now does most of the dog care and housework.

• Prior to Dr. Cyriac's surgery, Mrs. Coffey testified that she did most of the housework. She loved to keep a clean house. She did all the cooking. On an average day she spent two to three hours on household chores. Now she relies on her husband for most of the housework. She estimates that she does 10-15% of the housework that she did before.

• Mr. Coffey testified that he does about 90% of the household chores but he cannot keep the house as clean as his wife did. He estimates that he spends six to eight hours per day on dog care and housework that his wife used to do.

• Ms. Malik, an occupational therapist, was qualified to provide opinion evidence for the Plaintiffs. She has significant experience working with clients suffering from fibromyalgia and chronic pain.

• Ms. Malik took what Mrs. Coffey told her about her pre-incident functioning, correlated it with what she found in the medical records, and conducted a comprehensive in-person assessment of function at Mrs. Coffey's house. Ms. Malik concluded that Mrs. Coffey had created a life for herself at home and was pretty active. Mrs. Coffey's description of her functioning prior to Dr. Cyriac's surgery was consistent with an individual who was able to do activities of daily living by modifying things and taking breaks. She was generally high functioning, with good and bad days.

• Ms. Malik opined that Mrs. Coffey was doing on average two to three hours of housework and six to eight hours of dog care a day before the surgery.

• Ms. Malik also opined that there had been significant change in Mrs. Coffey's level of function since the surgery. Mrs. Coffey is now limited with respect to activities of daily living; she is not able to bend and is fearful and guarded because wrong movements can cause aspiration and choking. Mrs. Coffey is not able to go to as many dog shows, cannot visit her daughter in Toronto, and is very socially isolated.

• Ms. Malik observed Mrs. Coffey doing household tasks cautiously with prior planning of her movements. After an hour of activity, Mrs. Coffey appeared to be very tired.

• Ms. Malik concluded that, since Dr. Cyriac's surgery, Mrs. Coffey is able to do one to two hours of light housework (one to two fewer hours than before) and one to two hours of light dog care (four to six fewer hours than before).

• Ms. Fleming was called by Dr. Cyriac. The Plaintiffs submit that Ms. Fleming's opinion is compromised and of questionable value as she did not perform any in‑person assessment before coming to her opinions and her review was limited only to the impact of reflux, rather than the totality of Mrs. Coffey's functional limitations, which even Dr. Jackson confirmed were the consequence of repairing Dr. Cyriac's surgery.

• Ms. Fleming conceded that the best evidence of Mrs. Coffey's function prior to Dr. Cyriac's surgery would be from direct observation and that evidence as to what the observant saw should be preferred to her opinion drawn from the medical records.

• Only after Ms. Fleming had done her assessment of Mrs. Coffey and provided a report was an in‑person assessment done. Ms. Fleming explained the problem of cognitive bias:

So cognitive bias would be the theory that because I already had a predisposed idea of what I was going into and what Mrs. Coffey was going to - how she was going to present, what her needs would be, that I found information during that assessment that confirmed what I was going into in terms of pre-existing or preconceived notions, if you will.

In sum, Ms. Fleming's evidence is substantially undermined by a deeply flawed process whereby she formed her opinions before she had met with, observed, assessed, or spoken to Mrs. Coffey.

• In any event, both occupational therapists were of the view that Mrs. Coffey had long ago developed coping strategies to perform tasks at home with the inclusion of breaks and naps. Mrs. Coffey was not doing a regular 9 to 5 workday and/or eight continuous hours of work prior to Dr. Cyriac's surgery. Quite the contrary, she managed by spreading eight hours of activity over a full day.

[166] The Plaintiffs submit that Mrs. Coffey's condition deteriorated over the first three years after Dr. Cyriac's surgery and has since plateaued. With respect to dog care, they suggest a loss of four hours per day for 2011, four-and-a-half hours per day for 2012, five hours per day for 2013, and six hours per day for each year from 2014 to 2026.

[167] With respect to housework, the Plaintiffs suggest a loss of one hour per day for 2011, one‑and-a-half hours per day for 2012, and two hours per day for each year from 2013 to 2026.

The Defendant's Position

[168] Dr. Cyriac's submissions include the following:

• The Plaintiffs bring claims in respect of loss of services and assumption of the performance by Mr. Coffey with respect to dog care and housework. The Plaintiffs submit that Mrs. Coffey now performs six hours less of dog care and two hours less of housework, for a total of eight hours less work per day. In light of Mrs. Coffey's history and circumstances, this is a remarkable submission.

• Since approximately 1979, Mrs. Coffey has had fibromyalgia. In November of 2010, she was noted to suffer from fibromyalgia and other musculoskeletal pain that woke her during the night. Prior to Dr. Cyriac's surgery, Mrs. Coffey's weight interfered with her level of functioning. The medical records document that Mrs. Coffey had shortness of breath upon exertion, poor exercise tolerance, and poor energy.

• Mrs. Coffey also suffered with bilateral osteoarthritis and pain in her knees; pain on crouching down; legs giving way; prior shoulder problems with a rotator cuff tear; chronic back pain; poor energy and sleep apnea, with trouble staying awake in the day with the necessity of napping; type 2 diabetes; high cholesterol; asthma; and hypothyroidism.

• In support of their position, the Plaintiffs rely on the evidence of Ms. Malik, who testified that prior to Dr. Cyriac's surgery Mrs. Coffey was "high functioning." On cross-examination, however, it became evident that Ms. Malik had done little to corroborate Mrs. Coffey's self-reports through objective testing or correlation with contemporaneous medical records. Ultimately, Ms. Malik's evidence was largely based on Mrs. Coffey's self‑reports, and Ms. Malik stated that she had no reason not to believe Mrs. Coffey.

• Ms. Fleming did not think it was possible that, with her comorbidities, Mrs. Coffey was performing two to three hours of housework and six hours of dog care a day before Dr. Cyriac's surgery.

[169] Dr. Cyriac submits that the Court does not have evidence to assess Mrs. Coffey's ability to perform the services claimed if she had not have undergone the surgery and it is not possible to assess the Plaintiffs' claim for lost services. These awards should be zero.

Dog Care and Housework Damages Assessment

[170] To avoid calling accounting experts, the parties agreed on the annual value of one hour of dog care and housework per day (the same hourly amount for each). The Court is left to determine the average number of hours per day that Mrs. Coffey has lost in her ability to care for her dogs and do housework over the period of 2011 to 2026.

[171] With respect to dog care, I find that Mrs. Coffey has lost four hours per day for 2011 until 2026 and that Mr. Coffey has had to perform that work for his wife.

[172] With respect to housework, I find that Mrs. Coffey has lost one-and-a-half hours per day from 2011 until 2026 and that Mr. Coffey has had to perform that work for his wife. It is clear from everyone's evidence that Mr. Coffey prefers the dog care to the housekeeping.

MITIGATION

The Defendant's Position

[173] Dr. Cyriac submits that Mrs. Coffey failed to mitigate her damages and that, as a result, any damage award ought to be discounted accordingly. His submissions include the following:

• Following her reflux episode in December 2011, Mrs. Coffey discontinued her postoperative care with Dr. Cyriac and the OBN. Thereafter, Dr. Marcus performed a completion gastrectomy, which has caused Mrs. Coffey far greater issues. This constitutes a failure to mitigate because it was not reasonably expected that Mrs. Coffey would discontinue her follow-up care with her specialist bariatric caregivers. Again, I note that no expert opinion has been provided on the surgery performed by Dr. Marcus in 2012 and its resulting effects.

• Had Mrs. Coffey returned to see Dr. Cyriac or the OBN, it is likely that any reflux would have been addressed in a more conservative, stepwise fashion, and that she would be much better off than she is today.

• Mrs. Coffey failed to accurately report her symptoms to Dr. Marcus when she saw him in January of 2012. Her erroneous reporting of her symptoms led Dr. Marcus down a path that ended in the removal of Mrs. Coffey's entire stomach, materially worsening her condition and outlook.

• In failing to accurately report her symptoms to Dr. Marcus, Mrs. Coffey failed to mitigate her damages or, in the alternative, was contributorily negligent.

• The Plaintiffs' claim for lost services is premised on the need to care for the family's dogs. However, Mrs. Coffey has continued to breed further litters following Dr. Cyriac's surgery. Accordingly, the Plaintiffs have failed to mitigate their damages in respect of the dog care.

The Plaintiffs' Position

[174] The Plaintiffs submit that they did not fail to mitigate their damages. Their submissions include the following:

• Mrs. Coffey lost confidence in Dr. Cyriac because he ignored her expressed instructions. Her failure to return to Dr. Cyriac was entirely reasonable in the circumstances. A patient is under no duty to seek medical attention from a specific physician.

• The duty to mitigate requires that reasonable steps be taken. Dr. Jackson and Nurse Robinson agreed that it was reasonable for Mrs. Coffey to attend her local emergency department in December 2011, to follow the advice of the emergency room physician to see her family doctor, and to then follow the advice of her family doctor and the surgeon to whom she was referred (i.e. Dr. Marcus).

• No caselaw was cited to support the submission that a patient following the advice of her family physician and a specialist surgeon has failed to mitigate her damages or was somehow contributorily negligent. Mrs. Coffey acted as a reasonable and prudent person.

• Dr. Cyriac submits that Mrs. Coffey conveyed incorrect information to Dr. Marcus. The Plaintiffs submit that the suggestion that Mrs. Coffey wanted to supply information that would allow her to have her stomach removed is ludicrous. It is more likely that different doctors record different information consistent with the focus of each specialist and their standards of notetaking.

• Dr. Cyriac suggests that Mrs. Coffey should have stopped breeding dogs to reduce her damages. Mrs. Coffey's dogs were and remain an integral part of her life. The law of damages requires that Mrs. Coffey be put back in the same position that she was in absent the negligence found, to the extent money can do so. The evidence showed that Mrs. Coffey was, sadly, unable to breed as many dogs as she once did and now does what she can with her limited capacity and assistance.

Mitigation Assessment

[175] There has been no failure by Mrs. Coffey to mitigate her damages and there is no reason to reduce the damage awards that I have made. Mrs. Coffey's decision to not return to Dr. Cyriac was completely reasonable. He performed a surgery for which he did not have her consent. She followed the medical advice from the emergency doctor, her family doctor, and Dr. Marcus.

CONCLUSION

[176] Dr. Cyriac breached the standard of care when he performed a sleeve gastrectomy with a takedown of the fundoplication on Mrs. Coffey. Dr. Cyriac proceeded both without Mrs. Coffey's consent and without the necessary qualifications or skill for such a procedure. Mrs. Coffey's postoperative reflux was a predictable consequence of taking down the fundoplication and, but for Dr. Cyriac's negligence, a better or different outcome would have resulted. No intervening events disrupt the chain of causation in this case.

[177] Mrs. Coffey no longer has a stomach and she suffers from reflux and chronic pain. This has affected her outlook and her functioning. She can no longer perform the dog care and housework that she once did.

[178] Dr. Cyriac's negligence has also affected Mrs. Coffey's family. Mr. Coffey's plans for retirement have been significantly altered due to his wife's condition and their relationship has become less intimate. Ms. Coffey can no longer depend upon her mother for maternal guidance and now acts as the parent in the relationship.

[179] Based on the foregoing, the following amounts are awarded:

a) General Damages to Mrs. Coffey — $150,000

b) Family Law Act Damages to Mr. Coffey — $40,000

c) Family Law Act Damages to Ms. Coffey — $20,000

d) Damages for Lost Services — calculated at the agreed upon rate based on a loss of four hours per day of dog care for 2011-2026 and a loss of one-and-a-half hours per day of housework from 2011-2026.

J.E. Ferguson J.

Released: October 21, 2020

COURT FILE NO.: CV-14-495746 DATE: 20201021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICIA COFFEY, MICHAEL COFFEY and RACHEL COFFEY

Plaintiffs

– and –

JAMIE CYRIAC

Defendant

REASONS FOR JUDGMENT

J. E. Ferguson J.

Released: October 21, 2020

[^1]: Alakoozi v. Hospital for Sick Children, 2002 13236 (S.C.) at para. 73 ("Alakoozi"), aff'd 2004 8394 (C.A.).

[^2]: Anderson (Litigation Guardian of) v. Nowaczynski, [1999] O.J. No. 4485 (S.C.) at para 207 ("Anderson").

[^3]: Kurdina v. Dief, 2010 ONCA 288 at para 1, leave to appeal to SCC refused, 33731 (September 16, 2010) ("Kurdina").

[^4]: Kurdina at para 4.

[^5]: Joseph Brant Memorial Hospital v. Koziol, 1977 6 (SCC), [1978] 1 S.C.R. 491 at p. 497.

[^6]: Wells (Litigation Guardian of) v. Paramsothy [2000] O.J. No. 2390 (S.C.) at para. 154; cited in Watson v. Dr. Soon, 2018 ONSC 3809 at para. 78 ("Watson").

[^7]: Dale v. Munthali, 1977 1135 (S.C.) at para. 5.

[^8]: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[^9]: Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634 at para. 24.

[^10]: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 at para. 75.

[^11]: Hopp v. Lepp 1980 14 (SCC), [1980] 2 S.C.R. 192 at p. 210

[^12]: Health Care Consent Act, 1996, S.O. 1996, c.2 Sched A, s. 10.

[^13]: White v. Turner (1981), O.R. (2d) 773 (S.C.) at para. 47 ("White").

[^14]: Van Dyke v. Grey Bruce Regional Health Centre (2005), 2005 18841 (ON CA), 255 D.L.R. (4th) 397 (C.A.) at para. 63, leave to appeal to SCC refused, [2005] S.C.C.A. No. 335.

[^15]: White at para. 69.

[^16]: Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539 at para. 17 ("Arndt").

[^17]: Bollman v. Soenen, 2014 ONCA 36 at paras. 20-21.

[^18]: Arndt at para. 6 citing Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880 at pp. 898-900.

[^19]: Videto v. Kennedy (1981), 33 O.R. (3d) 497 (C.A.) at para. 11.

[^20]: Watson at paras. 22-28.

[^21]: Wilson v. Swanson, 1956 1 (SCC), [1956] SCR 804 at p. 817.

[^22]: Alakoozi at para. 73.

[^23]: Anderson at para. 207.

[^24]: Kurdina at para. 4

[^25]: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, 2 S.C.R. 181 at para. 46 ("Clements"); Watson at para. 112.

[^26]: Clements at para. 8; Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311 at para. 26.

[^27]: Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458 at para. 16 ("Athey").

[^28]: Clements at para. 8.

[^29]: See Rothwell v. Raes (1990), 1990 6610 (ON CA), 76 D.L.R. (4th) 280 (C.A.) at paras. 5-6 ("Rothwell"); Salter v. Hirst, 2011 ONCA 609, 341 D.L.R. (4th) 231 at paras. 14-15, leave to appeal to SCC refused, [2011] S.C.C.A. No. 503.

[^30]: Rothwell at para. 8.

[^31]: Papp et al. v. Leclerc (1977), 1977 1032 (ON CA), 16 O.R. (2d) 158 (C.A.) at para. 10.

[^32]: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 20.

[^33]: Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co Ltd., The Wagon Mound (No. 1), [1961] A.C. 388 (P.C.).

[^34]: Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, [2008] 2 S.C.R. 114 at para. 13, citing Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.) at p. 643.

[^35]: Martin v. Goldfarb (1998), 1998 4150 (ON CA), 41 O.R. (3d) 161 (C.A.) at para. 75.

[^36]: Athey at para. 35.

[^37]: Dimler v. Stanley, [1988] B.C.J. No. 622 (B.C.S.C.) at para. 32.

[^38]: Ellsworth v. Singer, 2016 ONSC 4281, [2016] O.J. No. 3524 at para. 250.

[^39]: Kennedy v. Jackiewicz, [2003] O.J. No. 1854 (S.C.) at para. 96 ("Kennedy").

[^40]: Kennedy at para. 98.

[^41]: Lindsay v. Freeman, [1995] O.J. No. 541 (C.J.).

[^42]: Smith v. Giese, 1993 7004 (A.B.Q.B.) at para. 1 ("Smith").

[^43]: Smith at para. 5.

[^44]: Family Law Act, R.S.O. 1990, c. F.3, s. 61(2)(e) ("FLA").

[^45]: Reidy v. McLeod Estate (1986), 1986 2556 (ON CA), 54 O.R. (2d) 661 (C.A.) at para. 30.

[^46]: Ayoub v. Dreer, 2000 CarswellOnt 3359 (S.C.) at para. 42.

[^47]: Thornborrow v. MacKinnon (1981), 1981 1945 (ON SC), 123 D.L.R. (3d) 124 (S.C.) at para. 19 ("Thornborrow"); McIntyre v. Grigg, 2006 37326 (ON CA), 83 O.R. (3d) 161 (C.A.) at para. 106 ("McIntyre").

[^48]: Thornborrow at para. 20; McIntyre at para. 106.

[^49]: McIntyre at para. 106, citing To v. Toronto Board of Education, 2001 11304 (ON CA), 204 D.L.R. (4th) 704 (C.A.) at para. 25; Mason v. Peters, 1982 1969 (ON CA), 39 O.R. (2d) 27 (C.A.) at para. 16, leave to appeal to SCC refused, [1982] S.C.C.A. No. 51.

[^50]: Kollaras (Litigation Guardian of) v. Olympic Airways SA, 1999 CarswellOnt 1158 (C.J.) at para. 92, aff'd 2000 CarswellOnt 1116 (C.A.). See also Madonia v. Stevens, 2008 70461 (S.C.) at para. 92.