Court File and Parties
COURT FILE NO.: CV-15-378
DATE: June 23, 2021
SUPERIOR COURT OF JUSTICE – ONTARIO
Between Jamie Heather Piatkowski and Richard Thomas Mason
Plaintiffs/Responding Parties
AND:
Demetrius Drakos
Defendant/Moving Party
BEFORE: The Honourable Justice R. J. Nightingale
COUNSEL: M. J. Lambert, Counsel for the Plaintiff Jamie Heather Piatkowski
A. Kalamut, Counsel for the Defendant
HEARD: March 30, 2021
ENDORSEMENT
[1] The defendant Dr. Drakos brings this motion for summary judgment to dismiss this medical negligence action commenced against him by the plaintiff Jamie Heather Piatkowski on the basis that there is no genuine issue requiring a trial.
[2] The plaintiff, now known as Jamie Mason, requests that the defendant’s motion for summary judgment be dismissed but also that she be granted summary judgment against the defendant on the issue of liability with an order for the trial of an issue on the amount of damages to which the plaintiff is entitled.
[3] The claims of the plaintiff Richard Thomas Mason, Jamie Mason’s spouse, have previously been dismissed on consent.
[4] The plaintiff Mason commenced this action in November 2015 alleging that the defendant Dr. Drakos, a plastic surgeon, was negligent in his preoperative, operative and postoperative treatment of her relating to his performance of an abdominalplasty, commonly known as a “tummy-tuck” operation, in November 2013.
[5] The plaintiff further alleges that Dr. Drakos failed to properly obtain her informed consent to that operation and treatment by failing to disclose the risks of wound complications, skin necrosis and scarring prior to her agreeing to the surgery.
[6] The plaintiff unfortunately experienced that complication postoperatively which has left her with some unsightly scarring on her abdomen. She alleges that had she known of these risks, she would not have proceeded with the surgery.
Factual Background
[7] In support of his motion, the defendant Dr. Drakos provided his own affidavit evidence, the affidavit of Lifa Jensen-Taillefer which provides the procedural history of the action and the affidavit of the defendant’s expert Dr. Brown.
[8] The plaintiff Mason provided her own responding affidavit. The plaintiff had obtained an expert’s report from Dr. Krajden in August 2019 and an earlier report of Dr. Weiglein, dated March 20, 2017.
[9] Although the plaintiff did not file any affidavit evidence from those two expert doctors, both qualified medical practitioners with a specialty in plastic and reconstructive surgery, in support of her position in these motions for summary judgment, the plaintiff served the required notice under section 52 of the Evidence Act requesting leave of the court to file those reports of those medical practitioners as her evidence.
[10] The defendant did not object to that request of the plaintiff. In fact, the defendant also served his required notice under section 52 of the Evidence Act requesting leave of the court to file those reports of those medical practitioners as his evidence. The plaintiff did not object to that request.
[11] In addition, the defendant’s expert Dr. Brown referred to the expert opinion of Dr. Krajden in his report in forming his opinion in support of Dr. Drakos’ position as noted below.
[12] Neither the plaintiff nor the defendant requested the opportunity to cross-examine either Dr. Krajden or Dr. Weiglein on the contents of their respective reports.
[13] Dr. Krajden’s report was compliant with the provisions of Rule 53.03 for admissibility of experts’ reports. It confirmed his expertise as a duly qualified medical practitioner specializing in the area of plastic and reconstructive surgery, set out the documents received and reviewed for the purpose of providing his opinion in his report and also set out the substance of his proposed testimony including his underlying facts and assumptions for his opinion which are central to the issues on this motion. The report confirmed he did not examine or treat the plaintiff and was requested by plaintiff’s counsel to provide his independent opinion on the material issues. The report also contained the required Acknowledgement of Expert’s Duty in the required form and the notice to rely on that report under section 52 was served by both parties on the other within the required time frame prior to the motion.
[14] Dr. Weinglein’s report confirmed that he interviewed and conducted a physical examination of the plaintiff in his office on June 20, 2016 and at the request of plaintiff’s counsel reviewed and provided his opinion on the preoperative care provided to her by Dr. Drakos and the performance of her abdominalplasty. His report also confirmed that he had reviewed the materials supplied by both plaintiff’s counsel and defendant’s counsel including the original charts of Dr. Drakos and the translated versions. The report sets out the substance of his proposed testimony including the underlying facts and assumptions for his opinion on the central issues on this motion. The notice to rely on that report under section 52 was also served by both parties on the other within the timeframe required for use on this motion.
[15] Neither counsel disputed the expert qualifications of Dr. Weinglein to give his opinion or suggested he was not giving his evidence within the scope of his qualifications. Neither counsel suggested that in giving his evidence he was not doing so in compliance with his obligations under Rule 4.1.01 notwithstanding he had not attached the acknowledgement of his expert’s duty to his report.
[16] Accordingly, based on these circumstances, both reports are properly before me for my consideration in this motion. Moushi v. Stephen, 2019 ONSC 3125; Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340; Ferraro v. Lee, (1974) 1974 CanLII 440 (ON CA), 2 O.R. (2d) 417.
[17] Both parties and Dr. Brown were cross-examined on their affidavits and the transcripts were provided to the court.
Defendant’s Evidence
[18] Dr. Drakos’ detailed affidavit describes the medical treatment and care he provided to the plaintiff, his discussions with the plaintiff and attaches his notes and records. Although he has no present recollection of his preoperative discussions with the plaintiff, Dr. Drakos was clear in his evidence because of his contemporaneously charted clinical notes that he made at the time of the examinations and his usual practice, he is certain he disclosed the risks of wound complications and skin necrosis to the plaintiff during the initial meeting with the plaintiff on October 22, 2013 and on his second preoperative appointment with her on November 19, 2013 before the surgery scheduled for November 29, 2013.
[19] His evidence, confirmed by his notes, is that the plaintiff contacted his office seeking an appointment to discuss both a breast augmentation and tummy-tuck procedure. His handwritten consultation notes made during the examination on October 22, 2013 and immediately after the plaintiff left confirms that Dr. Drakos explained to the plaintiff the risks of the tummy-tuck including scarring, skin necrosis and increased risk of improper healing including bleeding and/or infection due to her history of smoking.
[20] On his cross-examination, Dr. Drakos remained clear and firm in his evidence that he had specifically reviewed these matters with her on that date. His usual and normal practice, which he had done for quite a number of years, was to spend an hour with his patient during the initial consult and accordingly, he knows exactly what he discussed with the patient.
[21] He disagreed with plaintiff’s counsel suggestion that he did not actually discuss skin necrosis or advise the plaintiff of skin necrosis at that meeting as his usual practice was to discuss those matters. Dr. Drakos stated he may not have actually used the words “skin necrosis” or “necrosis” as the patient would not understand those terms. Rather, Dr. Drakos would explain those terms by the “increased risks of healing issues” which is also contained in his consultation notes and meant that he had discussed those risks of skin dying especially in the central portion where there is the greatest pull of the skin coming together versus the side where there is less skin being pulled together. His explanation would also be that there were risks of the skin not healing properly and the skin and wound opening up. He stated it was an all-inclusive explanation he would give.
[22] Dr. Drakos was also clear in his evidence in his affidavit and in cross-examination that when he talks to his patients about open split scarring which was mentioned in his notes, he would talk about skin coming apart or opening up which could cause a thicker scar or spread scar which was all part of the delayed healing of wound healing issues. He strongly disagreed with plaintiff’s counsel suggestion that he had simply added the words skin necrosis in his notes but did not actually review that with the plaintiff Ms. Mason as he knew what he talks about in his usual and normal practice.
[23] Dr. Drakos’ evidence was that at the end of that first consult, the plaintiff told him she would think about the breast augmentation and tummy-tuck and let him know if she wanted to proceed. She called his office on October 30, 2013 to confirm she wanted to proceed with both a breast augmentation and the tummy-tuck.
[24] When the plaintiff Mason returned for a second preoperative appointment on November 19, 2013, Dr. Drakos’ evidence, again based on his contemporaneous handwritten notes, is that he discussed with her what to expect on the day of the procedures, the risks related to the procedures, the postoperative care requirements and addressed any outstanding questions she had.
[25] Dr. Drakos confirmed that he again specifically discussed with the plaintiff the risks relating to the tummy-tuck procedure including the increased risk of improper healing with smoking including bleeding and/or infection, seroma (i.e. fluid collection under the abdominal skin flap), deep vein thrombosis, pulmonary emboli, umbilical complications, skin necrosis, scarring (thick, spread) and the need for revisions. His evidence based on his notes was that he also discussed the risks of umbilicus foreskin, wound healing issues, scarring and spread scars and the possible increased risk of complications arising from the plaintiff’s smoking history.
[26] His evidence to that effect was also based on his usual practice that he would have informed the plaintiff that he himself had not experienced a patient developing an infection, skin necrosis or wound healing issues in his 20 years of practice. Dr. Drakos stated that at the time he did 30 to 35 tummy tuck operations annually. He admitted that he did not explain to the plaintiff any probability or percentage chance of her suffering from skin dying or of skin not healing properly as a result of the operation but would state the complication could occur which was uncommon or rare.
[27] Dr. Drakos was not challenged to any significant extent on that evidence in his cross-examination.
[28] Dr. Drakos has no recollection of the surgery he performed on the plaintiff on November 29, 2013 relying on his handwritten operative note that he prepared immediately following the surgery and other notes he made later, all of which noted no surgical complications.
[29] Dr. Drakos’ in his evidence confirmed that he performed the abdominoplasty according to his standard practice and noted no surgical complications. He was not cross-examined on his evidence regarding the technical performance of the abdominoplasty or postoperative care he provided.
[30] Dr. Stephen Brown confirmed in his affidavit evidence that he is an experienced plastic surgeon in private practice who has performed approximately 400 to 500 abdominoplasties in his career. He is presently involved in clinical teaching in the plastic surgery training program at McMaster University and holds the position of assistant clinical professor in the Department of Surgery.
[31] Dr. Brown confirmed that he reviewed all of the relevant materials including Dr. Drakos’ medical chart, the hospital records relating to the plaintiff’s medical procedures and the transcripts from the examinations for discovery of the plaintiff and defendant.
[32] Dr. Brown’s opinion evidence was that Dr. Drakos met the standard of care expected of a plastic surgeon in a community setting in 2013 in all respects of his treatment of the plaintiff including properly disclosing the material risks of the procedure to her, the technical performance of the surgery and the postoperative care that he provided.
[33] Dr. Brown also confirmed that the skin necrosis and scarring that the plaintiff experienced postoperatively could not be attributed to the defendant’s treatment and care. It was a known complication of the surgery that can occur absent any surgical factors and any negligence on the part of the surgeon. He stated that in many tummy-tuck cases, as in this case, there are no identifiable causes of the complications.
[34] Further details of Dr. Brown’s evidence are noted below.
Plaintiff’s Evidence
[35] The evidence of the plaintiff Mason included her admission in cross-examination that when she scheduled the appointment with Dr. Drakos’ office, she was seeking both a breast augmentation and tummy-tuck which confirms the evidence of Dr. Drakos’ office notes.
[36] She admitted that she was self-conscious about her appearance and had poor self-esteem. She accordingly was prompted to have the cosmetic surgery resulting in her contacting Dr. Drakos to perform it.
[37] The plaintiff’s evidence was that her now spouse Richard Thomas Mason was also present with her during her initial meeting with Dr. Drakos on October 22, 2013. She stated that Mr. Mason questioned Dr. Drakos about cost and generally asked for information as to what was going to happen. However, no evidence from Mr. Mason to that effect including what he heard was discussed between his spouse and Dr. Drakos regarding the surgery and the risks of surgery was provided by the plaintiff in response to the defendant’s motion for summary judgment.
[38] The plaintiff said she showed Dr. Drakos two small scars on her abdomen resulting from a caesarean section and hysterectomy and that Dr. Drakos advised her he could fix that scarring.
[39] Her affidavit evidence was that she does not remember everything that Dr. Drakos said to her in that first consultation other than he made her believe that his work on her abdomen was going to be “a walk in the park” for him.
[40] She said in her affidavit that she asked Dr. Drakos during that initial consultation if there were any risks involved and was told by Dr. Drakos that everything was standard. He said he would give her a shot of heparin to prevent blood clots and an antibiotic as a preventative measure and described other postoperative care for herself.
[41] Specifically, her evidence was that Dr. Drakos did not advise her of the possibility of an infection or bleeding, skin necrosis or what skin necrosis even was. It was her evidence that even after the operation, Dr. Drakos never told her that as a result of the surgery, she had suffered skin necrosis.
[42] She admitted in her affidavit that Dr. Drakos mentioned the possibility of scarring as a result of the surgery but indicated it would be a very small scar from the incision which would be hidden under her bikini line. He told her “dog ears” were common as a result of the abdominal surgery but told her he would fix them when they needed to be done.
[43] They discussed her smoking and she told Dr. Drakos that she had been a smoker, but had quit three and a half to four months prior. He said her being a smoker could cause a delay in healing but because she said she had quit three and a half to four months before, there was no concern.
[44] Her affidavit evidence was that had she been advised of the possibility of skin necrosis as a result of the surgery, she would never have agreed to the abdominoplasty tummy-tuck operation.
[45] In cross-examination, the plaintiff admitted that she does not remember everything that occurred during that first consult with Dr. Drakos of October 22, 2013. She does concede Dr. Drakos asked about and discussed her smoking because of potential wound healing complications, scarring, dog ears and the potential risk of infection requiring him to give her an antibiotic as a preventative measure.
[46] The plaintiff had previously undergone a C-section, gallbladder removal surgery and hysterectomy requiring incisions in her abdomen resulting in some small scarring. She understood that the tummy-tuck operation meant that Dr. Drakos would be making a lengthy incision in her abdomen and removing tissue from it resulting in some degree of scarring with those incisions. She understood that because of the lengthy incision, there was a potential that the wound would not heal the way she hoped it would and that there was no guarantee for an ideal outcome in terms of the healing of her abdomen.
[47] The plaintiff appears to have an imperfect memory of the preoperative visit and discussions she had with Dr. Drakos at that first consultation meeting of October 22, 2013. She frankly admitted that her memories of her discussions with Dr. Drakos may have faded over time and it was tough to remember things that had happened. Although she believed her memory that he did not discuss with her the risks of a seroma, bellybutton complications, necrosis or deep vein thrombosis, she admitted it was possible that those discussions with Dr. Drakos may have happened but she does not remember because of her fading memory.
[48] Even though the plaintiff’s spouse was present with her during that initial meeting with Dr. Drakos, no affidavit or other evidence was provided to the court from him supporting the plaintiff’s version of the discussions with Dr. Drakos or contradicting that of Dr. Drakos. No reasons were given to the court by the plaintiff for not providing any such evidence from Mr. Mason on this motion for summary judgment despite the significant discrepancies in the evidence of the plaintiff and Dr. Drakos.
[49] However, the plaintiff frankly admitted in cross-examination that she has no recollection or memory of any discussions she had with Dr. Drakos in their subsequent meeting of November 19, 2013 regarding her proposed surgery or the risks thereof. As indicated above, it was Dr. Drakos’ clear evidence in both his affidavit and cross-examination that in that consultation, based on his handwritten contemporaneous notes and usual practice, he did inform the plaintiff again of the risks of wound healing issues and skin necrosis from the proposed surgery.
Analysis
[50] On a motion for summary judgment under Rule 20, the court must determine whether summary judgment in this action is appropriate having regard to the entire evidentiary record and the analytical framework outlined in Hryniak v. Mauldin, 2014 SCC 7.
[51] The two-step analytical approach outlined in Hryniak is as follows:
First, the motion judge should determine whether there is a genuine issue requiring the trial based only on the evidence before him without using the enhanced fact-finding powers under rule 20.04 (2.1) of the Rules of Civil Procedure.
Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine whether the need for a trial can be avoided by using the enhanced fact-finding powers under rule 20.04 (2.1) to weigh the evidence, evaluate the credibility of the deponent and draw any reasonable inference from the evidence and under rule 20.04 (2.2) to order that oral evidence be presented by one or more parties. Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 at para. 24.
[52] There is no genuine issue requiring a trial on a summary judgment motion if the evidence allows the judge to make necessary findings of fact, apply the law to the facts, and where summary judgment is proportionate, more expeditious and less expensive to achieve a fair and just result of the material issues.
[53] On a motion for summary judgment, the defendant, as moving party in this case, must establish a prima facie case that there is no genuine issue requiring a trial for its resolution. The onus then shifts to the plaintiff as the responding party to establish on affidavit material or other evidence facts showing there is a genuine issue requiring a trial, i.e. that her claim has a real chance of success.
[54] The court must assume that the record before it contains all the evidence on which the party would rely at trial. Neither party can simply advise the court that further or better evidence may be available at trial. The parties on both sides of a motion for summary judgment must put their best foot forward by leading trump or risk losing. Dia v. Calypso Theme Waterpark, 2021 ONCA 273; Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753.
Issue # 1 – Negligence Claim
[55] In order for the plaintiff to be successful regarding her claim for damages because of the defendant’s alleged negligence, she must establish on a balance of probabilities the applicable standard of care by Dr. Drakos, a breach of that standard of care, and causation in fact and in law.
[56] The plaintiff has the onus of establishing these elements through expert evidence to support those essential elements of a medical negligence case. Judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care and breach of the standard of care without the assistance of expert evidence. Accordingly, aside from the clearest of cases, the absence of expert evidence in support of the plaintiff’s medical malpractice claim is fatal. Liu v. Wong, 2016 ONCA 366 at para. 14; Larman v. Mount Sinai Hospital, 2014 ONCA 923.
[57] In this case, the evidence of the defendant’s expert plastic surgeon Dr. Brown confirms that the defendant met the standard of care in all respects of his surgery and treatment of the plaintiff. That included Dr. Drakos’ preoperative planning, technical performance of the procedure and postoperative management of the wound complications.
[58] Although the plaintiff did not lead affidavit evidence from either of her expert plastic surgeons, Dr. Krajden and Dr. Weiglein, as noted above, their reports and opinions therein were filed by both parties under section 52 of the Evidence Act as part of their evidence.
[59] In those reports, neither doctor provided an opinion that the defendant Dr. Drakos fell below the required standard of care expected of him in any way. Dr. Krajden could not identify any patient/anatomic or surgery factors which would significantly increase the plaintiff’s risk of developing skin necrosis postoperatively nor developing other major surgical, medical or anaesthesia complications as compared to the average patient who presents for cosmetic abdominoplasty.
[60] In particular, Dr. Krajden’s evidence was that although an abnormally tight closure of the abdominal incision at the completion of surgery can lead to wound dehiscence and tissue ischemia and secondary necrosis, he could not comment if there was such excessive tissue tension at the completion of the surgery or if this was a factor in the development of the plaintiff’s skin necrosis.
[61] Dr. Weiglein in his report in fact essentially confirmed that Dr. Drakos met the standard of care in his preoperative, operative and postoperative care of the plaintiff. He stated that based on the operative report, the procedure was properly carried out and there were no indications of any intra-operative surgical or anaesthetic problems. Dr. Drakos’ postoperative care of the plaintiff was appropriate and diligent.
[62] With respect to the issue of causation, the plaintiff also has not led any expert evidence to establish that any breach of the standard of care by the defendant caused the skin necrosis and her unfortunate residual scarring because of the operation.
[63] The defendant’s expert Dr. Brown’s opinion was clear that the skin necrosis suffered by the plaintiff was not attributable to the defendant’s care and that there were no identifiable surgical factors, i.e. by the manner in which the surgery was performed by Dr. Drakos that caused her outcome. He was clear that as in many tummy-tuck cases, including this case, there were no identifiable causes of the complications of the skin necrosis and scarring which are known complications of the procedure that can occur postoperatively absent any negligence on the part of the surgeon.
[64] In particular, Dr. Brown’s evidence is that there are usually multiple reasons for skin necrosis and wound healing difficulties such as in this case. His evidence was that postoperative excessive pressure from overlying dressing or compressive garment is one of many possible causes of the necrosis but there was no identifiable cause in this case of the plaintiff’s necrosis.
[65] The plaintiff’s own expert opinion of Dr. Weiglein in his report of March 20, 2017 also confirmed that there were no surgical and no patient factors which caused or contributed to the skin necrosis and scarring sustained by the plaintiff. In particular, his opinion was that excessive tension on the wound closure was not a likely cause of the tissue death given the moderate amount of tissue removed. Similarly, there was minimal liposuction carried out.
[66] The plaintiff’s other expert Dr. Krajden also opined in his report of August 6, 2019 that the complications of skin necrosis is a rare but known complication of the tummy-tuck surgery that can occur absent any existing patient factors or surgical factors.
[67] Based on the evidence of Dr. Drakos and Dr. Brown, neither of which was undermined in any significant way in cross-examination, the defendant has met the onus on him that there is no genuine issue requiring a trial on the plaintiff’s claim for negligence and his treatment and care of the plaintiff in the surgical operation.
[68] The onus having shifted to the plaintiff, it is incumbent on the plaintiff in this motion to lead the appropriate evidence confirming there still remains a genuine issue requiring a trial.
[69] Unfortunately, she has failed to do so in either her affidavit evidence and by failing to provide any expert’s opinion confirming that Dr. Drakos breached the required standard of care of him to exercise the degree of skill of the average specialist in his field and that that breach caused the resultant unsightly scarring of the plaintiff’s abdomen after the surgery.
[70] This is not one of the clearest of cases where the absence of expert evidence in support of the plaintiff’s medical malpractice claim would not be fatal to the plaintiff’s claim. Liu v Wong, above; Owala Estate v. Southlake Regional Health Care Centre, 2019 ONSC 5930 at para. 97. I am not able to conclude that the circumstances of this case are sufficiently clear that it would be obvious to any non-expert trier of fact what standards of care were needed to meet and equally clear that the standards were not met by Dr. Drakos.
[71] Even though the plaintiff sought to rely on the expert reports of Drs. Weiglein and Krajden, the evidence in those reports does not confirm that Dr. Drakos fell below the standard of care required of him or that the breach of that standard of care caused the plaintiff’s injuries. They both in fact appeared to confirm that Dr. Drakos met the standard of care and that there were no surgical factors which caused or contributed to the plaintiff’s necrosis.
[72] The Supreme Court of Canada in Armstrong v. Ward, 2021 SCC 1 adopted the dissenting opinion of Justice van Rensburg in the Ontario Court of Appeal, 2019 ONCA 963. In that decision, Justice van Rensburg found that in any case where standard of care is an issue, the court must determine what is reasonably required to be done or avoided by the defendant in order to meet the standard of care. In a medical malpractice case, the court must determine what a reasonable physician would have done or not done in order to meet the standard of care. In that case, the trial judge’s decision finding was upheld that the defendant doctor was negligent relying on expert evidence before the court on those issues at every stage of the negligence analysis.
[73] In this case, the medical experts including Dr. Drakos agree that skin necrosis because of the plaintiff’s diminished blood flow is a known complication of tummy-tuck surgery that can occur absent any surgical factors and without a discernible cause.
[74] On this basis, it would not be appropriate for the court to infer and make a finding that the cause of the plaintiff’s skin necrosis was because of excess pressure on the plaintiff’s abdomen during or after the surgery by Dr. Drakos without any expert evidence to support that conclusion. Larman v. Mount Sinai Hospital, 2014 ONCA 923; Hirchbirg v. Branson Drug Store, 2016 ONSC 4853, affirmed 2017 ONCA 62; Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125 at para.13; Aristorenas v. Comcare Health Services 2006 Canlii 33850 (ONCA) at paras.63 and 64, (2006) 83 O.R.(3d) 282.
[75] In my view, the evidence allows me to make the necessary findings of fact and apply the law to the facts in this motion which is proportionate, more expeditious and less expensive to achieve in a fair and just result of the material issues. I, accordingly, find that there is no genuine issue requiring a trial regarding the alleged negligence of Dr. Drakos. That claim advanced by the plaintiff on that basis is dismissed.
Issue # 2 – Lack of Informed Consent
[76] In an action where the plaintiff alleges the failure of the doctor to obtain her informed consent, there is no genuine issue for trial unless the plaintiff has put forward evidence establishing the following:
that the doctor who recommended the treatment failed to disclose the material, special or unusual risks of the treatment that was provided;
that the patient subjectively would not have consented to the treatment if the disclosure had been properly made; and
that a reasonable person in the patient’s circumstances would not have consented to the treatment had disclosure been properly made. Reibel v. Hughes, 1982 SCR 880. Hirchberg v. Branson Drugstore, above.
[77] Expert evidence is relevant to the question of what risks were associated with the particular treatment and were considered material from the standpoint of their probability of occurrence and severity as well as the question of breach of standard of care.
[78] Dr. Drakos’ evidence as noted above emanates from his contemporaneously recorded notes of his discussions with the plaintiff both during the October 22 and November 19, 2013 appointments he had with her and his usual practice of advising patients of the risks of wound healing issues and necrosis. He had not experienced these complications in his 20 years of surgical practice but stated he advised the plaintiff of the possibility of it occurring which would be uncommon or rare.
[79] The plaintiff disputes that evidence suggesting she was never advised of potential skin necrosis or anything other than the potential of slight scarring. She nevertheless conceded in cross-examination that her memory of what was actually discussed may have faded over the years since 2013 and that those discussions of those risks may have happened.
[80] As indicated above, no evidence was provided on this motion from her spouse Mr. Mason to either support her version of what was discussed or dispute Dr. Drakos’ version.
[81] Dr. Drakos’ evidence confirmed that on his second appointment of November 19, 2013 with the plaintiff prior to the operation, he specifically reviewed again the issue of possible risks of skin necrosis and other risks with the plaintiff which was noted in his contemporaneous notes. The plaintiff has no recollection at all of her discussions with Dr. Drakos on that second consultation meeting and Dr. Drakos was not challenged to any significant extent on his evidence in cross-examination.
[82] With respect to Dr. Drakos’ evidence of his usual practice, the case law has established that when a physician has no specific recollection of his or her dealings with the patient, he or she is entitled to testify as to what his/her ordinary or invariable practice is. That evidence is considered strong evidence that the physician acted in the same way on the same day in question. Turkington v. Lai, [2007] O.J. No. 4418 (S.C.J.) at para. 93.
[83] In this case, the defendant Dr. Drakos is not only relying on his usual practice but also his contemporaneous records which indicate he disclosed the risks of wound healing issues and skin necrosis to the plaintiff prior to her consenting to undergoing surgery.
[84] He also referred to the fact that the plaintiff signed the detailed consent form prior to her surgery on November 29, 2013. The form clearly indicated that she was consenting to the surgery, understood the nature of the procedure and the risks of the procedure and that all her questions were answered.
[85] In addition, the expert evidence of Dr. Brown provided by the defendant confirmed that Dr. Drakos met the standard of care by disclosing the material risks of the surgery to the plaintiff. Dr. Brown’s evidence was that skin necrosis complications in tummy-tuck operations are rare with the risk of necrosis being 2% to 3% or possibly 5% due to the plaintiff’s prior history of smoking.
[86] It is not insignificant as well that the plaintiff’s own expert report of Dr. Weiglein also confirmed that the defendant Dr. Drakos met the required standard of care by disclosing the material risks of the surgery including that of potential necrosis to the plaintiff. In fairness to the plaintiff, he was assuming that based on Dr. Drakos’ evidence and his notes.
[87] Dr. Weiglein’s report confirmed that wound healing complications from abdominalplasty surgery is between .05% for major wound healing complications and 5% for minor wound complications.
[88] Even if the plaintiff had met the onus on her to establish a breach of the standard of care required of the defendant in failing to disclose material, special or the unusual risks of the surgery including that of necrosis of the skin, the plaintiff must be able to prove causation on a balance of probabilities, i.e. that she would not have accepted the risk of skin necrosis and would not have proceeded with the surgery.
[89] Although in her affidavit evidence she stated that she would not have had she known of those risks, in cross-examination she acknowledged that if Dr. Drakos had disclosed the risk of necrosis and wound healing complications, she may have undergone the surgery but she did not know. She also admitted that if she was told there was a 95% chance of her not having this complication, it was a possibility she would have accepted the surgery. She said if she had been advised that was there was a 3% chance of skin necrosis and wound complications resulting in scarring, she did not know if she would have accepted that risk and agreed to the surgery.
[90] The plaintiff also admitted in cross-examination that she understood that there was a potential that there was going to be a lengthy and large incision on her abdomen with the potential that the wound would not be healed in the way she hoped it would. She understood there was no guarantee for an ideal outcome in terms of the healing of her abdomen before her surgery.
[91] The defendant’s expert evidence of Dr. Brown also addressed the issue of causation on a modified objective standard that only 5% of patients decline proceeding with the abdominoplasty based on the risk of scarring. This confirms the defendant’s position that on a balance of probabilities a reasonable person in the plaintiff’s circumstances would not decline the surgery when informed of the risks of scarring as a result of wound healing complications.
[92] The plaintiff’s evidence was that she was eager to undergo this cosmetic surgery to address her mental health issues, that she trusted and relied on Dr. Drakos as her treating physician who recommended she was a good candidate for the procedure.
[93] Even though the plaintiff subjectively states she would not have had the surgery had she been advised of the risks of skin necrosis, the plaintiff did not lead any expert evidence or other significant evidence on the element of causation and whether a reasonable person would have consented or not to the procedure even if informed of the material risks. Expert evidence relating to whether the majority of properly informed patients would proceed with the surgery is relevant to causation in the informed consent analysis. Brassard v. Germain, [1993] O.J. No. 259 (Ont.C.A.); Leblanc v. Hung, [2011] O.J. No. 1123 at paras 60 – 65.
[94] The defendant has on a balance of probabilities in his evidence established that there is no genuine issue requiring a trial regarding the lack of informed consent of the plaintiff.
[95] Despite the plaintiff’s affidavit evidence suggesting there may be a genuine issue requiring a trial on whether she was advised by the defendant of the material risks of skin necrosis as a complication of the surgery and whether she would still have proceeded with the surgery, in my view this is a case where I can use the enhanced fact-finding powers under Rule 20.04(2.1) in order to avoid the necessity of a trial. The evidence at a trial would not be any different than it is before me now on this summary judgment motion.
[96] One of the issues between the parties is whether or not and, if so, to what extent the plaintiff was advised of the risks of skin necrosis during the initial October 22, 2013 consultation between the plaintiff and Dr. Drakos. The plaintiff denies the contents of the discussions Dr. Drakos said he had with the plaintiff regarding the risks of wound healing and skin necrosis during that meeting but admits they may have happened because of her fading memory.
[97] No evidence was provided to the court by the plaintiff from her spouse Mr. Mason who was present during those discussions to support her evidence and contradict that of Dr. Drakos which in my view is of particular concern for the plaintiff’s position.
[98] No explanation was given as to why Mr. Mason was not called as a witness by the plaintiff who has the burden of proof on this key issue. As a rule of evidence, drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all circumstances. Where a party alone can bring material evidence before the court and fails to do so, the court may presume that the evidence would adversely affect the party’s case. Where witnesses are equally available to both parties, there is no reason to draw the inference. Parris v. Laidley, 2012 ONCA 755; Morden and Perell, The Law of Civil Procedure in Ontario, 4th ed., page 770.
[99] Although Mr. Mason is the spouse of the plaintiff, he is not in the exclusive control of the plaintiff and is a witness who is equally available to the defendant. I decline to exercise my discretion to draw the adverse interest against the plaintiff on that rule of evidence.
[100] However, Rule 20.021 as noted by Morden and Perell, is somewhat different from the rule of evidence. That rule confirms that on the hearing of the motion for summary judgment, the court may, if appropriate, draw an adverse interest from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. By implication, this would mean the court can discount the plaintiff’s evidence where it conflicts with the defendant’s or ignore it because of that direct contradiction with the defendant’s evidence.
[101] The plaintiff has an obligation to put her best foot forward with all relevant evidence in response to the defendant having confirmed in his evidence that there is no genuine issue requiring a trial regarding lack of informed consent. She has not done so because of her not providing any supporting evidence from Mr. Mason given her admitted fading memory of the discussions during the October 22, 2013 consult with Dr. Drakos.
[102] Regardless, the plaintiff has no recollection at all of what was discussed in the second consultation with Dr. Drakos of November 19, 2013 in which he stated he again reviewed with her the risks of wound healing and skin necrosis as an uncommon and rare possibility of the surgery although he had not experienced it in 20 years of practice. Dr. Drakos’ evidence is based not just on his contemporaneous consultation notes confirming that but also his usual and normal practice which is particularly strong evidence in his favour.
[103] When examining the whole of this evidence and applying the enhanced fact-finding powers under Rule 20.04(2.1) including drawing the reasonable inferences from the evidence, it is more likely than not that the risks of skin necrosis and wound complications were disclosed to the plaintiff before the surgery if not initially on October 22, 2013 but certainly during the second consultation of November 19, 2013. The plaintiff’s evidence does not raise a genuine issue requiring a trial in response to the defendant’s evidence on that issue.
[104] Furthermore, given the need to apply the modified objective test of the reasonable person in the plaintiff’s position on the issue of causation, this is also the appropriate case where I can weigh the evidence before me, evaluate the credibility of the parties, and draw the reasonable inference from the evidence without the need of having any further oral evidence being called at a trial.
[105] Although the plaintiff states subjectively she would not have proceeded with the surgery had she been advised of the risk of skin necrosis, there is a significant lack of evidence to suggest that a reasonable person in her circumstances would also not have done so. Moreover, there is no expert evidence from the plaintiff to contradict the evidence of the defendant’s expert Dr. Brown that only 5% of patients choose to not have the surgery when advised of the 2% to 5% risk of wound healing and skin necrosis because of it.
[106] The plaintiff on her own evidence and the lack of any supporting expert evidence has failed to meet the onus on her part to establish that there remains a genuine issue requiring a trial on the issue of lack of informed consent, i.e. regarding both the issues of non-disclosure of the material risks and whether a reasonable person in her position would have opted against the surgery had she been advised of those material risks of skin necrosis.
Conclusion
[107] For these reasons, the defendant’s motion for summary judgment is granted and the plaintiff’s action is dismissed.
[108] The plaintiff’s claim that she be granted summary judgment in her favour against the defendant is also dismissed.
[109] The defendant, having been successful in his motion and the action being dismissed, would ordinarily be entitled to his costs of the action and this motion on a partial indemnity basis, if demanded.
[110] If the parties are unable to resolve the issue of costs, the defendant is entitled to file brief submissions of no more than three pages in length, double spaced, together with a bill of costs and any relevant offers to settle within 30 days from the date of this decision.
[111] The plaintiff will be similarly entitled to respond within 10 days thereafter.
[112] If no such written submissions are received within those timelines, the parties will be deemed to have resolved the issue of costs of this motion and this action.
The Honourable Justice R. J. Nightingale
Date: June 23, 2021