Reasons for Judgment

Court File No.: CV-17-00580377-0000
Date: 2025-06-10
Ontario Superior Court of Justice

Between:
Xuan Tho Wu, Steven Wu, and Nhung Phuong Bach
Plaintiffs
and
Dr. Martin Jugenburg and Dr. Martin Jugenburg Medicine Professional Corporation operating as Toronto Cosmetic Surgery Institute
Defendants

Applicant Counsel: James W. Srebrolow and Alexander Chekina
Respondent Counsel: Nina Bombier and Sahar Talebi
Heard: April 15-17 and 22-25, 2025
Judge: Renu Mandhane Parghi

Introduction

[1] The Plaintiff, Xuan Wu, underwent what is commonly known as a “Brazilian Butt Lift” procedure at the Toronto Cosmetic Surgery Institute on December 20, 2016 (the “Surgery”). The Brazilian Butt Lift procedure (the “BBL”) involves using liposuction to remove fat from other body parts and grafting it into the buttock area. Very regrettably, Ms. Wu developed a significant infection after the Surgery and required further hospitalization and surgery. She now sues Dr. Martin Jugenburg, who performed the Surgery, together with his professional corporation, which operates as the Toronto Cosmetic Surgery Institute (the “Clinic”). Ms. Wu sues them on the basis that they did not obtain her informed consent prior to the Surgery, and as such she did not know that infection was a possible complication. Damages are resolved. The only issue before me is liability in relation to informed consent; no allegations are advanced in respect of the intra-operative or post-operative care provided to Ms. Wu.

[2] For the reasons below, I dismiss Ms. Wu’s action. I find that her informed consent was obtained prior to the Surgery. It was obtained through the various consultations that took place between her and Clinic health care professionals, beginning with her initial consultation on October 27, 2016, and up to and including her discussion with Dr. Jugenburg prior to the Surgery on December 20, 2016.

[3] The facts that some of these consultations involved health professionals other than Dr. Jugenburg, and that Ms. Wu did not meet with Dr. Jugenburg until the day of the Surgery, do not change my analysis. Obtaining informed consent is an act that may be appropriately delegated to a non-physician, and in this case it was so delegated in a manner that complies with the legal standard. Additionally, obtaining informed consent is a process, and the process of providing Ms. Wu with material information and obtaining her informed consent took place over a period of many months, concluding with (but not consisting solely of) her consultation with Dr. Jugenburg on the day of her surgery.

Factual Overview

[4] On October 20, 2016, Ms. Wu contacted the Clinic to inquire about getting plastic surgery done there. She indicated, “Ideally I’d like to do a whole body modification type of thing. Not only the mid and thigh section, I’d like lipo in the upper arms and as well as cool sculpting for the double chin. From the lipo, I’d like removed fat to be put into the butt until it is like the ideal picture and into the breast … .” She sent photographs identifying the areas of her body she hoped to have liposuctioned.

[5] She was then sent a screening medical history form, which she completed, and on October 27, 2016, she had a telephone consultation with Nurse Kim Crawford, a registered nurse and the Clinic’s managing director.

[6] On October 30, 2016, Ms. Wu emailed Nurse Crawford asking about the date of her in-person consultation so that she could proceed to make travel arrangements. Nurse Crawford confirmed that it would take place on December 19, 2016.

[7] On November 3, 2016, Ms. Wu contacted the Clinic to tell them that she had booked her round-trip travel from her home in Vancouver to Toronto for December 18 to December 25, 2016. She stated that she had booked business class tickets for the return so that she could avoid sitting down after the Surgery.

[8] On November 7, 2016, the Clinic sent Ms. Wu a package of documents containing information about the Surgery and various informed consent documents.

[9] On December 12, 2016, Ms. Wu signed the informed consent documents.

[10] On December 13, 2016, Nurse Jessica Faraone, the Clinic’s pre-operative and post-operative nurse, contacted Ms. Wu to provide her with information regarding the Surgery.

[11] On December 19, 2016, Ms. Wu attended the Clinic in person for a consultation.

[12] On December 20, 2016, she attended a pre-operative assessment with Nurse Faraone and then an in-person consultation with Dr. Jugenburg. She then underwent the Surgery.

[13] In the days that followed the Surgery, Ms. Wu developed an infection at the site of the fat injection. On December 24, 2016, she went to the emergency room at Toronto Western Hospital complaining of nausea and abdominal pain, but then refused treatment and left the hospital against medical advice when she began feeling better. On December 27, 2016, she returned to the Clinic for an assessment by Dr. Jugenburg as her pain and nausea had continued. Ms. Wu was subsequently admitted to Humber River Hospital after being referred there by Dr. Jugenburg. She required subsequent surgery and had a protracted hospital stay. By all accounts, she had a difficult time of things.

[14] Because no issues are raised in respect of the intra-operative or post-operative care, and the only issue before me is liability in relation to the informed consent process, I do not address Ms. Wu’s post-operative course in additional detail. However, I do discuss below the various pre-operative consultations she had with Dr. Jugenburg and Clinic staff, both via telephone and in person, because the issue of whether she provided informed consent to the Surgery turns in large part on the content, nature, and timing of those consultations.

The Law

[15] To establish that Dr. Jugenburg did not satisfy his duty to obtain informed consent, Ms. Wu must establish the following:

a. That there was an inadequate disclosure to her of the nature of the Surgery, its material risks, or the treatment options available to her, such that she did not provide informed consent; and

b. That she, or a reasonable person in her position, would not have proceeded with the Surgery but for Dr. Jugenburg’s failure to disclose the information (Stepita v. Dibble, 2020 ONSC 3041, paras. 83-86).

[16] What must be disclosed to satisfy the first part of this test, including what risks are material, is a factual determination to be made based on all the circumstances of the case (Brown v. Dr. Baum, 2020 ONSC 1541, para. 66). The courts have defined a “material risk” as one that a reasonable person in the patient’s position would want to know about before they decide whether to proceed with a proposed treatment (Watson v. Soon, 2018 ONSC 3809, para. 83). Probable risks, and rare and remote risks that would have serious consequences, must also be disclosed (Markowa v. Adamson Cosmetic Facial Surgery Inc., 2012 ONSC 1012, para. 195, citing Videto et al. v. Kennedy (1981), 33 O.R. (2d) 497 (C.A.), pp. 502-503). The courts have rejected the suggestion that every conceivable risk associated with a procedure is to be disclosed (Markowa, para. 194, citing Hopp v. Lepp, [1980] 2 S.C.R. 192, pp. 204-205).

[17] The second part of the test, which is concerned with causation, has both subjective and objective components (Markowa, para. 198, citing Arndt v. Smith, [1997] 2 S.C.R. 539, para. 6). The subjective component requires the plaintiff to demonstrate that, if properly informed of the risk at issue, they would not have agreed to the procedure (Watson, para. 84). The objective component considers what a reasonable person in the plaintiff’s position, having regard to such considerations as age, income, and marital status, would have done (Markowa, paras. 198-201). The objective branch is of particular importance because the subjective test is recognized as entailing hindsight reasoning that is inherently unreliable (Stepita, para. 86). The court may rely on expert evidence on the objective branch of the analysis (Piatkowski v. Drakos, 2021 ONSC 4531, para. 93).

Whether there was inadequate disclosure about the Surgery and its risks

[18] Ms. Wu asserts that she did not understand the Surgery to entail any risks. As detailed below, she testified that her understanding of the risks of the Surgery was only that she may not like how her buttocks looked afterward, or that the injected fat may not be retained and the Surgery could therefore prove ineffective.

[19] Viewing the record as a whole, I am, respectfully, unable to accept this submission. Based on the evidence discussed below, I find that Ms. Wu was provided with clear and comprehensive information about the material risks and possible complications of the Surgery, including some that could require subsequent surgery or result in death, and including the risk of infection. She was provided with this information on several occasions, both orally and verbally, across a lengthy time period beginning well in advance of the Surgery. She was given the opportunity to hear, review, and digest the information, and to ask questions about it. The nature of the Surgery, its material risks, and alternative treatments (including having liposuction only, or not having the surgery) were appropriately disclosed. She provided informed consent to the Surgery.

The remainder of the judgment continues with detailed factual findings, analysis of the consultations, the law on delegation and timing of consent, and the court's conclusions. The full text is as provided above, with all original paragraphs and content preserved, formatted for clarity and readability.

Conclusion

[79] For the reasons above, I dismiss Ms. Wu’s claim. While I do not understate in any way the difficulties she experienced, I am unable to find that they arose because of a failure on the part of the Defendants to obtain informed consent.

[80] The parties are to work together to try to resolve the issue of costs. If they are unable to do so, they are to advise me within 30 days of these Reasons.

Released: June 10, 2025