Citation: Van Mol v. Ashmore Date: 19990112
1999 BCCA 0006 Docket: CA022042
Registry: Vancouver
COURT OF APPEAL FOR BRITISH COLUMBIA
BETWEEN:
MELANIE ANN VAN MOL,
PHILLIP FREDERICK C. VAN MOL, and
SANDRA LYNN VAN MOL
PLAINTIFFS
(APPELLANTS)
AND:
DR. PHILLIP GODFREY ASHMORE
DEFENDANT
(RESPONDENT)
Before: The Honourable Mr. Justice Lambert
The Honourable Mr. Justice Goldie
The Honourable Madam Justice Huddart
J. D. McAlpine, Q.C. and
H. A. Mickelson Counsel for the Appellants
C. E. Hinkson, Q.C.
and C. Rusnak Counsel for the Respondent
Place and Date of Hearing Vancouver, British Columbia
25, 26 and 27 May, 1998
Place and Date of Judgment Vancouver, British Columbia
12 January, 1999
Written Reasons by:
The Honourable Mr. Justice Lambert
Concurring Reasons by:
The Honourable Madam Justice Huddart (p.77, para.140)
Dissenting Reasons by:
The Honourable Mr. Justice Goldie (p.80, para.146)
Reasons for Judgment of the Honourable Mr. Justice Lambert:
I
I N D E X
[1] For convenience of cross-reference I have divided these
reasons into the following Parts:
I. INDEX
II. THE NATURE OF THE CLAIM
III. AN OUTLINE OF THE TRIAL PROCEEDINGS
IV. THE STANDARD OF REVIEW
V. MELANIE'S MEDICAL HISTORY
VI. THE OPERATION
VII. THE CONDUCT OF THE OPERATION: THE FIRST GROUND OF
CLAIM
VIII. THE CONDUCT OF THE OPERATION: THE EVIDENCE
IX. THE CONDUCT OF THE OPERATION: THE TRIAL JUDGMENT
X. THE CONDUCT OF THE OPERATION: THE APPELLANT'S
ARGUMENT
XI. THE CONDUCT OF THE OPERATION: SUMMARY, OBSERVATIONS
AND CONCLUSIONS
XII. INFORMED CONSENT: THE SECOND GROUND OF CLAIM
XIII. INFORMED CONSENT: A SIXTEEN-YEAR OLD PATIENT
XIV. INFORMED CONSENT: SURGICAL ALTERNATIVES
XV. INFORMED CONSENT: THE STANDARD OF CARE FOR MELANIE
XVI. INFORMED CONSENT: THE FINDINGS AND THE EVIDENCE
XVII. INFORMED CONSENT: SUMMARY AND CONCLUSIONS
XVIII. LARYNGEAL NERVE DAMAGE
XIX. SYNOPSIS
XX. DISPOSITION
II
THE NATURE OF THE CLAIM
[2] The claim by Melanie Ann Van Mol against Dr. Ashmore rests
on two grounds.
[3] The first ground is that Dr. Ashmore was negligent in
embarking on a surgical procedure to remedy a narrowing of
Melanie's aorta without a system of prophylactic protection
available or in place to reduce the risk of haemorrhaging and
the risk of cutting off the circulation of blood to her spine
and lower body for a period which would create a very
significant possibility of permanent paralysis of her lower
limbs.
[4] The second ground is that Dr. Ashmore was negligent in
failing to inform Melanie of the material risks and the special
or unusual risks of the contemplated surgical procedure, and in
failing to permit Melanie to participate, through seeking a
second opinion or otherwise, in the decision about which of
three or more available surgical alternatives should be adopted
in her case.
III
AN OUTLINE OF THE TRIAL PROCEEDINGS
[5] The claim was put forward over 35 days of trial. Melanie
gave evidence on her own behalf. Her father, who was her
guardian ad litem when the action was begun, also gave
evidence, and so did her mother. Dr. Sett and Dr. LeBlanc, who
were participants in the operation, were called as witnesses on
behalf of Melanie. Dr. Patterson, who was involved in
Melanie's care for many years as a pediatric cardiologist, and
Dr. Ashmore, the pediatric cardiac surgeon in charge of the
operation, gave evidence as defendants. Expert evidence was
presented by both sides. Dr. Gillis, Dr. Cornel, and Dr.
Miyagishima were called by the plaintiffs. Dr. Penkoske and
Dr. Trusler were called by Dr. Ashmore.
[6] Madam Justice Kirkpatrick conducted the trial. Her
reasons occupy 65 pages. They are available on QuickLaw at
[1996] B.C.J. 1199. The facts and her conclusions from those
facts are very fully set out in her reasons. I do not propose
to summarize those reasons. I will assume that anyone
interested in these reasons will be familiar with Madam Justice
Kirkpatrick's reasons. I will confine my references to the
trial judge's reasons to points which are relevant to my
consideration of the precise issues in this appeal.
[7] Madam Justice Kirkpatrick dismissed the action entirely.
She addressed both grounds of claim. She heard evidence about
the assessment of damages but made no assessment. After her
reasons were delivered the parties joined in a submission
requesting that damages be assessed, but Madam Justice
Kirkpatrick declined to make the assessment.
IV
THE STANDARD OF REVIEW
[8] The task of a Court of Appeal in a negligence appeal has
been addressed a number of times by the Supreme Court of
Canada. There was no disagreement between counsel on this
appeal about the scope of the function of a Court of Appeal.
The questions that are open for examination by an Appeal Court
were put in this way by Madam Justice McLachlin for a unanimous
nine-judge panel of the Supreme Court of Canada in Toneguzzo-
Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114 at p. 121-122:
It is now well established that a Court of Appeal
must not interfere with a trial judge's conclusions
on matters of fact unless there is palpable or
overriding error. In principle, a Court of Appeal
will only intervene if the judge has made a manifest
error, has ignored conclusive or relevant evidence,
has misunderstood the evidence, or has drawn
erroneous conclusions from it.... A Court of Appeal
is clearly not entitled to interfere merely because
it takes a different view of the evidence. The
finding of facts and drawing of evidentiary
conclusions from facts is the province of the trial
judge, not the Court of Appeal.
. . .
I agree that the principle of non-intervention
of a Court of Appeal in a trial judge's findings of
fact does not apply with the same force to inferences
drawn from conflicting testimony of expert witnesses
where the credibility of these witnesses is not in
issue. This does not however change the fact that
the weight to be assigned to the various pieces of
evidence is under our trial system essentially the
province of the trier of fact, in this case the trial
judge.
(my emphasis)
[9] So the relevant questions for a Court of Appeal in
relation to arguments on issues of fact are:
1. Is there a palpable and over-riding error?
2. Is there a manifest error?
3. Has the trial judge ignored conclusive or relevant
evidence?
4. Has the trial judge misunderstood the evidence?
5. Has the trial judge drawn erroneous conclusions from
the evidence?
[10] I think that the first two questions must come to this: A
Court of Appeal is not to retry the case as if it were
assessing the evidence for itself and reaching its own
conclusions. It must defer to the trial judge's findings and
conclusions on questions of fact, not simply because the trial
judge is in a better position to assess the quality of the oral
evidence by observation of the witnesses, but also because the
law assigns the making of the findings of fact to the trial
judge, and, unless the findings are shown to be wrong, they
must stand and must be accepted by a Court of Appeal.
[11] So a Court of Appeal must decide whether the trial judge's
findings and conclusions of fact have been shown to be wrong in
a way which either must have altered the result or may well
have altered the result. Surely what is meant by the
descriptive adjectives "palpable" and "manifest" must be that
the error can be identified and can be shown to be an error.
The importance of identifying the error is stressed in
Beaudoin-Daigneault v. Richard, [1984] 1 S.C.R. 2 at p. 9.
Surely, also, what is meant by the adjective "over-riding" must
be that the error is one which either must have altered the
result or which may well have altered the result.
[12] I think that the third, fourth and fifth questions must
represent examples of specific kinds of palpable, manifest and
over-riding errors in relation to the treatment of the
evidence. So the questions confronting the Court of Appeal in
relation to suggestions that the trial judge ignored or
misconceived relevant evidence, or drew wrong conclusions from
it, must still be whether the error can be identified and can
be shown to be an error, and whether the error is one which
either must have altered the result or may well have altered
the result.
[13] Sometimes a trial judge may state a piece of evidence in
his or her reasons in a way which is clearly incorrect. But
much more often the appellant's argument rests on the fact that
the trial judge omitted to refer to a piece of evidence that
was relevant to a conclusion or finding of fact. Such an
omission is not itself an error unless the circumstances are
such that the omission must give rise to a reasoned belief that
the trial judge must have forgotten, ignored, or misconceived
the evidence in a way which affected his or her conclusion.
More usually, the omission is only one factor in the overall
task facing the Court of Appeal in relation to questions of
fact. The task is one which the Court must face, whether the
particular evidence is referred to in the trial reasons or not.
That task is to decide whether, on the basis of all the
evidence, there was a body of evidence which was properly,
judicially, and reasonably capable of supporting the conclusion
which the trial judge reached.
[14] As I have said, the parties to this appeal did not
disagree about the nature of the task that was before the Court
on this appeal.
V
MELANIE'S MEDICAL HISTORY
[15] Melanie was born on 8 November, 1973 with a narrow section
(a coarctation) in her aorta. The diagnosis was made by Dr.
Patterson, then a pediatric cardiologist at Vancouver General
Hospital, who has continued to be involved in Melanie's cardiac
care. Unless remedied, such a narrowing creates increased
risks to life and health. When Melanie was two years old, in
1975, she underwent a surgical procedure of patch aortoplasty
to repair the coarctation, at Vancouver General Hospital. The
surgery was performed by Dr. Ashmore. It was designed to widen
the narrow part of the aorta by opening it up and sealing it
with a permanent patch. Some significant narrowing remained
after that operation and when Melanie was six, in 1979, she was
operated on, a second time, for a second coarctation repair by
graft patch aortoplasty. Again Dr. Ashmore was the surgeon.
However, the problem remained serious enough to require further
intervention. In 1987, when Melanie was thirteen, a third
procedure was undertaken. This time it was decided, after
consultation between Dr. Patterson and Dr. Ashmore, that a
balloon angioplasty would be attempted in an effort to widen
the aorta without surgically exposing it. Dr. Patterson
performed that procedure. Still the problem remained. It
continued to be a threat to Melanie's long-term health and to
her life expectancy.
[16] At a cardiac surgical conference ("rounds") on 13 March,
1989, a conclusion was reached that a third aortoplasty or
coarctation repair was to be recommended for Melanie. Dr.
Ashmore was regarded as the surgeon responsible for surgical
procedures to be performed on Melanie. By then he was the
senior pediatric cardiac surgeon at B.C. Children's Hospital.
Dr. Ashmore was present at the conference when the decision was
made and so were Dr. LeBlanc, an experienced pediatric cardiac
surgeon at B.C. Children's Hospital, and Dr. Patterson.
[17] There were several potential problems with the projected
surgery, all of which were recognized at the "rounds". First,
as in all coarctation repairs the aorta would have to be
isolated, clamped and dissected, but the scarring and adhesions
which would have been left from Melanie's previous two
operations would make that isolation and dissection time-
consuming and difficult. Second, the aorta itself might be
particularly fragile (or "friable") as a result of the first
two operations and the balloon angioplasty. Finally, the
collateral circulation, or the means by which Melanie's system
naturally re-routed blood flow around the coarctation, might
not be sufficient to keep up an adequate supply of blood to her
lower body for the duration of the surgery.
[18] On 30 March, 1989, Dr. Patterson wrote to Melanie's
parents with the recommendation arising from the "rounds"
conference on 13 March that a third surgical repair be carried
out. The surgery was scheduled for the summer of 1989.
Melanie was admitted to B.C. Children's Hospital on 27 August,
1989, for the third attempt at surgical repair of the
coarctation, but the surgery was cancelled because of a labour
dispute. The surgery was rescheduled and cancelled a number of
times over the next several months. Melanie was re-admitted to
B.C. Children's Hospital on 22 February, 1990 and, after one
final postponement, the surgery took place on 26 February,
1990. Melanie was then aged sixteen years and three months.
VI
THE OPERATION
[19] Dr. Ashmore's plan for the operation was to enter the
chest through the old incision on the left side at the base of
the fourth rib and to follow a direct path to the coarctation
site where he proposed to expose and free a sufficient length
of the aorta to insert a clamp around it. He then proposed to
test whether the collateral blood supply to the spine and lower
limbs was such that the spine and lower limbs could come
through the operation unimpaired. If it was not, then he
proposed to use a Gott Shunt, essentially a tube which would be
inserted above the coarctation site and below the coarctation
site in the aorta and which would allow a flow of blood to
bypass the coarctation site and support the spine and lower
body. Once the flow of blood was assured, the coarctation
would be repaired by a patch or a tube, and the operation would
be concluded.
[20] Dr. Ashmore began the operation in accordance with his
plan. He was assisted by Dr. Sett, a cardiac surgical
resident. It took 89 minutes to reach and expose the
coarctation site in the aorta. Dr. Ashmore said the adhesions
were a major problem and a lot of vascular adhesions needed to
be divided before the aorta could be exposed. Dr. Ashmore also
said that the proximal aorta was extremely thin-walled and that
meant that dissection had to be done very carefully. After the
aorta was exposed a clamp was passed across the aorta. As that
was being done a tear was created in the posterior wall of the
aorta, and Melanie started to haemorrhage. From that point on,
the main focus of the operation was to repair the tear and
control the haemorrhage; the lack of control over the aortal
laceration and the compromised position of the aorta meant it
was no longer possible to consider the insertion of a Gott
Shunt. The aorta had only been partially freed from its
surrounding adhesions, and there was not enough room to move
the clamp further up it. Dr. Ashmore opened the aorta and
tried to repair the tear from inside, but failed.
[21] Dr. LeBlanc, who was present in the hospital, heard of the
problem confronting Dr. Ashmore and went to help. He arrived
between 90 and 110 minutes after the tear had occurred. Dr.
LeBlanc decided that more aorta had to be isolated so that the
position of the clamp could be changed. He took control of the
changed procedure, and after a sufficient amount of the aorta
had been freed he inserted a 30 mm tubular graft which had the
effect of remedying both the tear and the coarctation. The
operation was then concluded.
[22] Melanie's collateral blood flow was never measured, and
obviously no Gott Shunt or bypass machine had been used. By
the time the operation was over, the blood flow to Melanie's
spine and lower limbs had been cut off for approximately two
hours and fifteen minutes.
[23] Melanie has never recovered the use of her legs. She has
a non-functional flaccid paraplegia. She has bowel and bladder
control but is confined to a wheelchair. She also suffered
injury to her recurrent laryngeal nerve. That has left her
with a somewhat hoarse voice which she has difficulty in
modulating. No evidence relating to the effectiveness of the
coarctation repair was referred to in the course of argument in
this appeal, but it was said that Dr. LeBlanc's intervention in
the operation may well have saved Melanie's life.
[24] At an interdisciplinary meeting held on 9 March, 1990 at
B.C. Children's Hospital, Dr. Ashmore spoke to many of those
involved in Melanie's care about the surgery and about
Melanie's future care. Nurse Cook, a clinical nurse who is a
nurse specialist in cardiac surgery and who was involved with
Melanie throughout the procedures of 1989 and 1990, took notes
of the meeting. She said she took them as accurately as
possible. Her record of the meeting describes those present,
recalls Dr. Ashmore's report about his consultations with the
neurology team about Melanie's prognosis, discusses a plan
involving care and treatment of Melanie at the G.F. Strong
Rehabilitation Centre, then sets out an explanation given to
the group by Dr. Ashmore about his rationale for not using a
cardio-pulmonary bypass in Melanie's surgery, and concludes
with an approach to take with Melanie's care. Dr. Ashmore
said, in evidence, that the report prepared by Nurse Cook was
not accurate and that he could not have said what she reported
him to have said.
[25] The policy of the surgical staff of B.C. Children's
Hospital was to prepare a report of each operation within 48
hours after it took place. That policy was instituted by Dr.
Ashmore. Melanie's operation took place on 26 February, 1990.
Dr. Ashmore's surgical report of the operation was dictated on
4 May, 1990, more than two months after the operation, and was
transcribed three days after that.
[26] Dr. Ashmore was 64 years old when he operated on Melanie
on 26 February, 1990. He had just had his 70th birthday when
he testified in 1996. He retired shortly after this operation,
perhaps on reaching his 65th birthday. He had had a very
distinguished surgical career. Dr. Ashmore was succeeded as
Chief of Pediatric Cardiac Surgery at B.C. Children's Hospital
by Dr. LeBlanc who still held that position at the time of
trial.
VII
THE CONDUCT OF THE OPERATION: THE FIRST GROUND OF CLAIM
[27] Once it had been decided that some surgical intervention
must occur if Melanie was to be safeguarded from heart
difficulties and a shortened life expectation, and once it had
been decided that a third coarctation repair was the best form
of surgical intervention, the remaining questions related to
the method of coarctation repair. There is no disagreement
between the parties in this case about whether surgical
intervention had to occur, or about whether coarctation repair
was the best form of surgical intervention.
[28] The point that divides the parties with respect to the
first ground of claim is whether it constituted negligence to
carry out the coarctation repair in Melanie's case, where there
had been two previous coarctation repair procedures and an
angioplasty, leaving a high risk of very serious adhesions to
dissect, and a highly fragile aorta, without a system of
prophylactic protection available or in place to reduce the
risk of cutting off the circulation of blood to Melanie's spine
and lower body for a dangerous length of time.
[29] Dr. LeBlanc, in his evidence, described the three possible
surgical alternatives for carrying out the coarctation repair
on Melanie in this way:
I made the point this morning that there is a
difference between techniques and options. When you
repair a coarctation you have three techniques, which
is to cross-clamp the vessel without anything else;
to cross-clamp the vessels with bypass, meaning the
heart/lung machine; or to cross-clamp the vessels
with the Gott Shunt. These are three techniques to
repair this.
The cross-clamping without anything else is the most
straightforward method. If no problems are anticipated, it is
commonly used. Where there may be problems the alternatives
available are the cardiopulmonary bypass or a more limited
bypass, or the use of the Gott Shunt.
[30] A cardiopulmonary bypass requires the presence of a heart-
lung machine and operators for the machine, one of whom is
known as a perfusionist. The machine can be made available
hooked up and ready to begin work, on standby, or at various
stages in between. There is some risk associated with using a
bypass. Particularly, the patient must be "heparinized", that
is, given a blood-thinning agent to avoid the formation of
clots either in the machine or in the patient's own
circulation. If haemorrhaging were to become a problem there
would be a risk of excessive bleeding, so the heparinization
would have to be reversed with a drug called Protamine and the
bypass discontinued. There were at least two methods of bypass
described in the evidence. In one, oxygenated blood is pumped
from the left atrial to the lower body by means of an incision
in the groin and an insertion of a tube into the femoral
artery. This form of bypass only requires use of the "heart"
function of the heart-lung machine. A more complete bypass,
called a "fem-fem" or femoral vein to femoral artery bypass,
could also be used. This form of bypass takes deoxygenated
blood from a tube inserted in the patient's femoral vein,
oxygenates the blood, and returns it to the patient's femoral
artery where it recycles around the lower body. The patient's
own heart and lungs are thus cut off completely from the lower
body, and both parts of the heart-lung machine are used.
[31] The bypass machine reduces the risks of spinal cord damage
during an operation by ensuring a steady flow of oxygenated
blood to the spine and lower body while the aorta itself is
cross-clamped. Risk of spinal cord damage increases swiftly
with the length of time that the spine is denied blood. So in
operations made more difficult and time-consuming by the
presence of dense adhesions and a friable aorta, the
availability and use of a bypass machine would have particular
value in risk-reduction.
[32] The Gott Shunt requires the insertion of the top of the
shunt higher up the aorta than the coarctation site, and the
insertion of the bottom of the shunt below the coarctation site
and so creates an immediate bypass of the coarctation site.
The two insertions are made into the aorta at places where the
aorta should be comfortably strong, but the extra dissection
and the incisions in the aorta produce risks associated with
the use of the Gott Shunt.
[33] Dr. Ashmore's plan for the operation contemplated cross-
clamping without anything else. It required that a test be
made immediately after the clamping to determine whether
sufficient blood was being carried to the spine and the lower
limbs by collateral blood vessels already developed over time
to cope with the coarctation. If the test indicated sufficient
blood on an appropriate blood gradient then the operation would
proceed to repair the coarctation by a patch or a tube. If the
test indicated that there was not sufficient blood on an
appropriate blood gradient then the Gott Shunt would be
inserted by further dissection and incisions in the aorta
before returning to the repair of the coarctation. In short,
it was not part of Dr. Ashmore's plan of the operation to use
the Gott Shunt prophylactically before cross-clamping, but to
use it in order to ensure blood supply only if the blood supply
was not naturally sufficient.
[34] It was the plaintiff's position at trial, and continued to
be the plaintiff's position on the appeal, that Dr. Ashmore's
plan for the operation was not an appropriate plan for Melanie,
having regard to her medical history, and that Dr. Ashmore was
negligent in putting the plan into effect without the
prophylactic protection of either a bypass machine or a Gott
Shunt inserted before cross-clamping.
VIII
THE CONDUCT OF THE OPERATION: THE EVIDENCE
[35] Seven doctors, including Dr. Ashmore and Dr. LeBlanc, gave
evidence which bore on whether a bypass machine or a Gott Shunt
should have been used prophylactically in this operation.
[36] Dr. Ashmore had himself performed 500 to 550 primary
coarctation repairs, between 40 and 45 secondary coarctation
repairs, and two third coarctation repairs. I understand that
none of those patients died, though general mortality rates for
those operations are between 5% and 15%. Melanie is the only
one of Dr. Ashmore's patients who suffered spinal cord injury.
[37] Dr. LeBlanc only considered Melanie's case on one occasion
before he joined the surgical team during the operation in
progress on 26 February, 1990. That previous occasion was at
the time of the "rounds" surgical conference with respect to
Melanie on 13 March, 1989. In Dr. LeBlanc's evidence about
that conference, given both on examination for discovery and at
trial, he said: first, that the presence of dense adhesions and
the thinness of the aorta were both anticipated in the course
of the conference; second, that it was his expectation that
either a Gott Shunt or a bypass machine "should" be used
prophylactically during this third coarctation repair operation
on Melanie because of the anticipated presence of dense
adhesions and a thin or friable aorta at the coarctation site;
and third, that he suggested to Dr. Ashmore that a form of
prophylactic protection should be used in Melanie's operation.
Dr. LeBlanc would himself have used a cardiopulmonary bypass
because that was the technique which he had been trained to use
and which he was accustomed to using.
[38] In the course of his evidence at trial, Dr. LeBlanc was
asked about the risk of paraplegia from a third coarctation
operation. I will set out the question that he was asked and
the answer that he gave:
Q Now, could I take you then back to your
examination for discovery that Mr. McAlpine read
to you, the second volume. He read to you
question 638, among others, and that question is
relative to the risks of paraplegia. Question
is -- he asked if "those risks were something
that were known to you before 1990?":
A Oh, yeah,they're the same risk in
the range of one to three per
cent.
Now, where do you get the one to three
percent from?
A The risk of paraplegia in patients that have
arch problem varies from .4 to .5. in a patient
with coarctation and good supply, to 3 to 4
percent as the patient gets older or -- and has
had previous coarctation repair. So in a baby,
the risk is very minimal. On an older patient
with large collaterals the risk is minimal. On
a patient that has a second, a third, a fourth
operation the risk will increase slightly.
(my emphasis)
[39] Dr. Gillis was called on behalf of the plaintiffs. He was
Chief of Surgery at the Isaak Walton Killam Hospital for
Children from 1963 to 1994 and Chairman of the Dalhousie
Medical School from 1989 to 1993. He was experienced in
coarctation repair and recoarctation repair. It was his
opinion that in the context of Melanie's third coarctation
operation, in the anticipated circumstances, the immediate
availability of cardiopulmonary bypass was required, and it was
imprudent for a surgeon to go ahead with the third coarctation
operation to the extent that Dr. Ashmore did without more
appropriate protection.
[40] Dr. Cornel was called on behalf of the plaintiffs. He
specialized in pediatric, cardiac and thoracic surgery at the
Janeway Child Health Center in Newfoundland and then at the
Children's Hospital of Eastern Ontario in Ottawa for the
thirteen years before the trial. Dr. Cornel said, in relation
to the operation technique, that it was his opinion, given the
surgical hazards, that Dr. Ashmore should not have proceeded
without spinal cord protection in place. He said that some
surgeons do use a Gott Shunt prophylactically in secondary
coarctation repairs as opposed to a heart/lung machine.
[41] Dr. Miyagishima was called on behalf of the plaintiffs.
From 1970 to the time of trial he had been a member of the
surgical staff of St. Paul's Hospital in Vancouver and from
1989 to 1993 he had been Head of the Division of Cardiovascular
and Thoracic Surgery at St. Paul's Hospital. In his report he
said this:
In reviewing the transcript, it appears that the
surgeon relied substantially on his skill and
previous experience to approach this case. These two
qualities are extremely important. Nevertheless, I
believe the standard of care required a surgeon in
the circumstances of this case to anticipate the
difficulties which can occur and to have a protective
mechanism in place.
In a situation where a left thoracotomy is undertaken
and if it is apparent that the aorta at the site of
the coarctation is difficult and hazardous to dissect
due to scarring, adhesions and friability and if the
'Gott' shunt cannot be inserted and if the heart/lung
machine is not readily available then, it is prudent
to stop the operation and close the chest, discuss
the situation with the patient and parents and, if
agreeable, rebook for another time when all the
ancillary protective devices are available.
(my emphasis)
[42] Dr. Trusler was called on behalf of the defendant. He was
for many years a pediatric cardiovascular surgeon and, at the
time of trial, had just retired as Head of the Division of
Cardio-Vascular Surgery at the Hospital for Sick Children in
Toronto. Dr. Trusler described Dr. Ashmore's plan for
Melanie's third coarctation operation as a reasonable plan, in
keeping with good medical practice. He said it was the way in
which many surgeons would manage a patient like Melanie. He
said that a prophylactic support was only used when a patient
had special problems and that there was no evidence that
Melanie had the kind of problems which would warrant the use of
prophylactic support.
[43] Dr. Penkoske was called on behalf of the defendant. She
is a cardio-thoracic surgeon and was then a Clinical Professor
in the Department of Pediatrics and Surgery at the University
of Alberta Hospital. In her report she said that the third
coarctation repair on Melanie by Dr. Ashmore was conducted in a
manner that met the accepted standard of practice of a
pediatric cardiac surgeon in 1990. It was Dr. Penkoske's
opinion that a prophylactic femoral artery bypass, any other
type of bypass, or a Gott Shunt, were not required in Melanie's
case.
IX
THE CONDUCT OF THE OPERATION: THE TRIAL JUDGMENT
[44] Madam Justice Kirkpatrick reached her conclusion on the
first ground in a segment of her reasons headed "The Standard
of Care". She went through portions of the medical evidence
and stated her conclusion in these passages:
[103] In Melanie's case, there was what Dr.
Trusler described as the "major danger" of dissection
up to the point of cross-clamping of the aorta, prior
to the fine dissection necessary to effect the
repair. That period of "major danger" passed
uneventfully. The thrust of the evidence establishes
that the relative speed with which Dr. Ashmore was
able to complete the dissection to the point of cross
clamping of the aorta was indicative of the relative
ease of dissection, even in the presence of difficult
and dense adhesions.
[104] The various views expressed by all the
surgeons, and which is reflected in the medical
literature, make it plain that the decision is not
simply one of shunt or no shunt; or patch
aortoplasty, or jump graft, or interpositional graft.
The evidence is clear that every option available to
the surgeon (be it an operative approach or a
mechanism for spinal cord protection) carries with it
positive and negative features. The mere fact that
so many procedures are available and are considered
appropriate in the repair of recoarctations is
perhaps the best proof that there is no one accepted
school of medical thought as to the best operative
approach.
[105] Based upon all of the evidence, I conclude
that there was, in 1990, no one acceptable operative
procedure nor one accepted method of ensuring
protection of the spinal cord in the repair of a
third coarctation. Indeed, from the review of the
various expert opinions and the medical literature
discussed by the doctors at trial, it is evident that
there are several acceptable operative procedures and
acceptable approaches for the protection of the
spinal cord. Further, it is clear that Dr. Ashmore's
operative approach was one of several acceptable
approaches consistent with an established body of
medical opinion.
. . .
[110] Considering the very extensive and complex
medical evidence heard in this case, I conclude that
Melanie's condition involved difficult and uncertain
questions of medical treatment, as evidenced by the
conflicting schools of thought on the best approach
to repair a recoarctation and to ensure adequate
spinal cord perfusion. At a superficial level, and
with the clarity of hindsight, it may seem obvious
that cardiopulmonary bypass might have protected
Melanie's spinal cord and prevented her paraplegia.
But if one assesses the circumstances of Melanie's
extensive medical history, Dr. Ashmore's intimate
knowledge of her medical circumstances, the operative
site as it was known in January, 1989 and as it
presented in February 1990, the risks and benefits of
the various approaches, and Dr. Ashmore's skill and
knowledge as a surgeon, the decision to employ spinal
protection prophylactically is not, as required by
ter Nuzen, "obvious nor readily apparent."
Furthermore, I am unable to conclude that "the
obvious and reasonable precautions" were themselves
without risks, or that, if employed, they would have
necessarily prevented Melanie's paraplegia.
[111] Based on all of the evidence, it is clear
that the decisions made in Melanie's case involved
the assessment and weighing of a multitude of complex
factors, both prior to the surgery and intra-
operatively. Dr. Ashmore brought to that unenviable
task enormous skill and experience. In hindsight, he
was tragically mistaken in his choice of approach.
Dr. Ashmore's surgical plan did not take into account
a rare and exceptional occurrence - the tear in the
aorta at the time of cross clamping. Notwithstanding
the application of diligence, care, knowledge, skill
and caution, Melanie has suffered the tragic results
of Dr. Ashmore's inability to foresee what occurred.
But the law does not impose a standard of perfection
upon doctors. They cannot be expected to be the
predictors of the rare and exceptional occurrence.
This, of course, provides no comfort or solace to
Melanie who must live with the consequences of the
strictures of an imperfect standard. It is an
exceedingly fine line which must necessarily be
drawn. However, after long and anxious
consideration, I conclude that Dr. Ashmore's conduct
fell within the acceptable standard of an ordinary
cardiac surgeon acting with prudence and diligence.
(my emphasis)
[45] I have added emphasis to the last two sentences in which
Madam Justice Kirkpatrick expresses her conclusion. I think it
is fair to say that the words "an exceedingly fine line" and
the words "after long and anxious consideration" must be taken
to incorporate into Madam Justice Kirkpatrick's reasons an
indication that the plaintiff must have come very close to
establishing her case on a balance of probabilities, as she is
required to do, but to have fallen just short in Madam Justice
Kirkpatrick's opinion.
X
THE CONDUCT OF THE OPERATION: THE APPELLANT'S ARGUMENT
[46] The appellant's argument in relation to the first ground
was made under three headings, each described, in accordance
with the Court's Rules, as an error in the trial judgment:
I. The Learned Trial Judge erred in finding that Dr.
Ashmore was not required to foresee, and plan for, a
tear in the aorta at the time of cross-clamping.
II. The Learned Trial Judge erred in finding that Dr.
Ashmore's operative approach conformed to an accepted
standard medical practice.
III. In the alternative, the Trial Judge erred in failing
to find that the standard medical practice to which
Dr. Ashmore conformed was itself negligent.
Alleged Error No. I
[47] This alleged error lies in para.111 of the trial judge's
reasons. I will repeat a part of that paragraph:
In hindsight, [Dr. Ashmore] was tragically mistaken
in his choice of approach. Dr. Ashmore's surgical
plan did not take into account a rare and exceptional
occurrence - the tear in the aorta at the time of
cross clamping. Notwithstanding the application of
diligence, care, knowledge, skill and caution,
Melanie has suffered the tragic results of Dr.
Ashmore's inability to foresee what occurred. But
the law does not impose a standard of perfection upon
doctors. They cannot be expected to be the
predictors of the rare and exceptional occurrence.
[48] The appellant referred in her factum to the evidence of
Dr. Trusler, the witness for the defendant who seems to have
been most heavily relied on by the trial judge, and whose
report is extensively quoted by the trial judge. In
particular, the appellant referred to this passage from Dr.
Trusler's report, quoted by the trial judge in her reasons:
It is often most dangerous on the back wall where it
may be adherent to the tissue anterior to the spine
and where visibility is limited because the
dissection passes behind the aorta. There is a
constant and substantial risk of tearing the aorta
with subsequent bleeding and hypotension during such
dissection...
(emphasis added by appellant)
[49] The appellant said that the general risk of uncontrolled
haemorrhaging was generally foreseeable and the specific risk
of haemorrhaging through a torn aorta was specifically
foreseeable; that having regard to that foreseeability either a
Gott Shunt or a bypass machine should have been used
prophylactically; and that the failure to do so constituted
negligence.
Alleged Error No. II
[50] In relation to this alleged error on the part of the trial
judge the appellant referred to a number of separate instances
of error.
[51] It was said that the trial judge erred in her finding that
the recoarctation site posed "no special circumstances". It
was pointed out that the evidence of Dr. LeBlanc, Dr. Sett and
Dr. Ashmore, the doctors who were present, was that the site
presented very dense adhesions encasing the aorta and that the
aorta was thin and friable. It was said that any conclusion
that those conditions could not have been anticipated and could
not have been known until the operation was underway
represented a misunderstanding of the medical evidence. For a
sixteen-year old girl who had had two previous coarctation
repair operations, an angioplasty, and a history of blood
pressure problems it was said that this operation presented
special difficulties which required that prophylactic measures
be put in place before reaching the dangers presented by those
difficulties.
[52] It was said also that the trial judge erred in her
assessment of the medical literature which, it was said, did
not support a decision not to use prophylactic protection in a
third coarctation repair at all, and particularly not where the
cross-clamping was anticipated to exceed thirty minutes even if
all went well.
[53] It was said that the trial judge erred in her assessment
of the expert evidence. The expert witnesses of the defendant,
Dr. Trusler and Dr. Penkoske, it was said, misunderstood Dr.
Ashmore's plan. They based their views on the fact that there
was no basis for believing that Melanie's adhesions would be
different than adhesions to be expected in any other
recoarctation repair. Dr. Trusler, it was said, did not know
that the cross-clamp time estimated by Dr. Ashmore might be as
long as sixty minutes, even if all went well.
[54] It was pointed out that the evidence that there was no
"guarantee" that paraplegia would be avoided if prophylactic
protection had been used, misconceived the plaintiff's position
and this misconception constituted an error on the part of the
trial judge. A guarantee was not expected. What was expected
was that the operation would be conducted under a procedure
that significantly reduced the risk of paraplegia by the use of
prophylactic protection.
[55] It was said that the trial judge erred in failing to
mention in her reasons Dr. LeBlanc's practice of putting his
patients on a bypass machine in advance of fine dissection "to
ensure safety for dissection", and his practice of
prophylactically placing the bypass tubes of the bypass machine
so that "when I am in the chest if I encounter any difficulty I
can go on the heart/lung machine right away".
[56] It was a part of the appellant's argument that the trial
judge erred in accepting Dr. Ashmore's "concerns" about using a
bypass as justification for proceeding without any protection
in place at all. It was said that Dr. Ashmore's "concerns"
were inconsistent with, first, the safe and routine use of the
bypass machine "every day" as a "main tool" of cardiac surgery;
second, the use of the bypass machine on literally thousands of
occasions by all the cardiac surgeons who testified; third, the
evidence of his colleagues who described the risk associated
with the use of the bypass machine as "very very minimal",
"extremely minimal" or "pretty rare"; fourth, Dr. LeBlanc's
assessment, following the rounds on Melanie's case, that in
view of the anticipated difficulties of dissection either a
Gott Shunt, or a bypass machine, should be used
prophylactically; and fifth, the use of a bypass machine to
provide "extra safety" in cases where the surgeon anticipates
that there might be difficulty as in the case of dense
adhesions.
[57] Reference was also made to para.93 of the trial judgement
which is in these terms:
Notwithstanding the unpredictability of the extent
and density of scar tissue and adhesions, and the
sufficiency of Melanie's collateral circulation, as
well as the possible friability of the aorta, it is
plain from Dr. Ashmore's evidence that those risk
factors were not ignored. Indeed, they were planned
for, as evidenced by his intention to use a Gott
shunt if the collateral circulation proved to be
inadequate.
It was said that the trial judge misinterpreted Dr. Ashmore's
evidence in her conclusion that the unpredictability of the
extent and density of scar tissue and adhesions and the
possible friability of the aorta were planned for and not
ignored. Only the possible insufficiency of Melanie's
collateral circulation was planned for and only it was to be
remedied by the use of the Gott Shunt.
[58] It was pointed out by way of overview in relation to the
discussion by the appellant's counsel of the trial judge's
reasons that the error said to have been made by the trial
judge must be assessed on the basis that she, herself, said
that an "exceedingly fine line" must necessarily be drawn and
the assessment of this first ground required "long and anxious
consideration". It was argued that if the trial judge had not
made the particular specified errors in relation to the
evidence, then she may well have reached a conclusion on the
other side of the "exceedingly fine line".
[59] So it was argued that the errors altered the result.
Accordingly it was said that some evidence was ignored, some
evidence was misconstrued, and that some incorrect conclusions
were drawn from the evidence with the result that the trial
judgment was both clearly wrong and manifestly wrong as a
result of palpable errors inducing an incorrect conclusion.
Alleged Error No. III
[60] In making the argument in relation to this alleged error,
counsel for the appellant relied on this timeless passage from
Anderson v. Chasney, [1949] 4 D.L.R. 71 (Man.C.A.), per Mr.
Justice Coyne at pp.86-87:
Ordinary common sense dictates that when simple
methods to avoid danger have been devised, are known
and are available, non-user, with fatal result,
cannot be justified by saying that others also have
been following the same old, less careful practice.
[61] It was argued that the surgical technique adopted for this
operation by Dr. Ashmore, and supported in his evidence by Dr.
Trusler, was a technique used and kept in use only by older
surgeons. (Dr. Ashmore and Dr. Trusler were both in their mid-
sixties in 1990.) But Dr. LeBlanc and surgeons of his
generation had been trained to use a bypass machine for surgery
like the operation on Melanie so that, in Dr. Trusler's words,
"they have that extra safety".
[62] This argument was advanced to support the allegation that
the trial judge erred in failing to find that the medical
technique for this operation to which Dr. Ashmore conformed was
itself negligent.
XI
THE CONDUCT OF THE OPERATION: SUMMARY, OBSERVATIONS AND
CONCLUSIONS
[63] Having regard to the view that I take of the issue of
liability on the second ground of claim, namely that as a
matter of law Dr. Ashmore is liable to Melanie for a failure to
observe the requirements with respect to informed consent, it
is unnecessary for me to reach any conclusion with respect to
the first ground of claim and I do not propose to do so.
[64] But before turning to the second ground of claim I propose
to make four observations. In doing so I wish to say that I do
not regard myself as substituting my view of the evidence for
any finding made by the trial judge or as otherwise infringing
on the function of the trial judge under the principles set out
in Toneguzzo-Norvell v. Burnaby Hospital and discussed in Part
IV of these reasons.
[65] My first observation is that while there is support in the
evidence for the view that Dr. Ashmore's surgical plan was not
contrary to all qualified medical opinion in 1990, (though it
was argued that Dr. Trusler did not know that Dr. Ashmore
intended to cross-clamp without prophylactic support for as
long as sixty minutes even if all went well, and that Dr.
Penkoske was not as reliable as the plaintiff's experts),
nonetheless there is a very extensive body of evidence that,
with Melanie's history, this operation should have been
conducted with prophylactic protection and support in place or
immediately available, either in the form of a bypass machine
or a Gott Shunt.
[66] My second observation is that the trial judge correctly
recorded the evidence when she said (at para.121) that the risk
of paraplegia in coarctation repair surgery, in general, is
.41%; but the trial judge seems to have misapplied that
evidence and drawn an incorrect conclusion from it when she
considered (in para.131) that in relation to Melanie the risk
of paraplegia in this third coarctation repair operation, with
her medical history, was .41% (given to two decimal places).
The risk of paraplegia in a third coarctation repair operation
does not seem to have been the subject of any specific study
revealed in the medical literature. But the medical evidence
in this case is to the effect that the risk of paraplegia in a
third coarctation repair operation is significantly greater
than in a first coarctation repair operation. Dr. LeBlanc said
that the risk grows to 3% or 4%. In Melanie's case,
anticipating dense adhesions from the previous surgeries and a
friable aorta, I think that the evidence as a whole suggests
that the risk of paraplegia should be taken to have been
somewhere between 1% and 4%.
[67] My third observation is that even though there are some
identifiable risks associated with both the Gott Shunt and the
bypass machine, nonetheless the risk of paraplegia, the risk of
death, and the other overall risks are significantly reduced if
prophylactic protection in the form of a bypass machine or a
Gott Shunt is employed in a third coarctation repair where
dense adhesions and a friable aorta ought to be anticipated.
The three expert witnesses called by the plaintiff, namely Dr.
Gillis, Dr. Cornel, and Dr. Miyagishima all considered that the
bypass machine should have been used prophylactically, that is,
for safety protection. Dr. LeBlanc, who attended the "rounds"
surgical conference in March 1989 said then that prophylactic
protection "should" be used for safety, and he said in his
evidence that he would have used a cardiopulmonary bypass as a
safety measure. But, most noteworthy of all, on re-examination
by counsel for Dr. Ashmore, Dr. Trusler, a witness called by
the defendant, summed up his evidence in these words:
And the young surgeons coming out now, and for the
last 20 years, they're mostly trained in adult
surgery and then after all their training in adult
surgery they come to the pediatric side for one year.
Now, they will -- they will have done -- the adults
do everything on bypass. They do all their aorta
coronary bypasses are done on the pump, all their
valve surgery is done on the pump, and that's most of
adult cardiac surgery. So if they're going to do
anything around the heart it's done on the pump. And
they come to us and they may see two recurrent
coarctations in a year that are done without the
pump, so they go back home and they -- they have done
everything on the pump and they really don't feel
comfortable if they're not on the pump and they have
that extra safety. So that maybe in the long term
that's the way to go, but it has -- over the last 20,
30 years doing it the way we've done it has produced
very satisfactory results. It's just interesting
that -- to see how it's all worked out historically.
(my emphasis)
So Dr. Trusler explicitly recognized that the use of a
cardiopulmonary bypass provides extra safety and that, for that
reason, "maybe in the long term that is the way to go".
[68] My fourth observation is that the trial judge, twice in
her reasons (at paras.96 and 110), noted the evidence that
there was no guarantee that the use of prophylactic protection
would have avoided the paraplegia. But we are considering a
question about a reduction of risks, not about guarantees. It
seems to me that dwelling on the absence of a guarantee through
use of a bypass may indicate a misconception on the part of the
trial judge of the risk assessment process in relation to the
use of the bypass as a safety measure.
[69] However, in addition to those four observations there is
one conclusion that I propose to draw from the evidence in
relation to the first ground of claim because it is necessary
to my process of reasoning on the second ground of claim. That
conclusion is that all of the medical evidence is to the effect
that there are at least three principal alternative methods of
carrying out this third coarctation repair operation. The
first is the method adopted by Dr. Ashmore, which does not use
any prophylactic protection but which has a Gott Shunt
available for use if the collateral blood flow is insufficient
to maintain circulation to the spine and lower limbs throughout
the operative procedure. The second is to use the Gott Shunt
prophylactically by installing it before cross-clamping the
aorta. The third is to have a cardiopulmonary by-pass pump
available, and to either hook it up or have everything ready to
hook it up so that it may be immediately available, or may be
called upon speedily if it is required. Each of those
alternative methods has its own risks. In each case those
risks are describable and, in some respects, assessable. There
is no reason why they could not be described, assessed, and
discussed with the patient who has consenting capacity.
Decisions taken after that would be based on the patient's own
assessment of the risks and his or her expressed preferences.
There is nothing in that conclusion that is contrary, either
expressly or implicitly, to the findings or conclusions of the
trial judge. She reached no finding or conclusion on that
question. Any such finding or conclusion was not necessary to
her train of reasoning or to her ultimate conclusion on the
first ground of claim that failure to use a cardiopulmonary by-
pass or a Gott Shunt used prophylactically did not constitute
negligence.
[70] There is one further conclusion which I consider that it
is proper to draw from the evidence in relation to the first
ground of claim and which may be regarded as supporting my
reasons on the second ground of claim, though I do not regard
this second conclusion as essential to my reasons on the second
ground of claim but only as an aid to those reasons. That
second conclusion arises from my third observation, namely,
that the expert evidence, including that of Dr. Gillis, Dr.
Cornel, and Dr. Miyagishima, called by the plaintiff, and Dr.
Trusler, called by the defendant, is to the effect that having
prophylactic protection in the form of a cardiopulmonary bypass
pump, or a Gott Shunt used prophylactically, provides "extra
safety" in a coarctation repair of this kind. Again there is
nothing in that conclusion that is contrary, either expressly
or implicitly, to the findings or conclusions of the trial
judge. She reached no finding or conclusion on that question.
Any such finding or conclusion was not necessary to her train
of reasoning or to her ultimate conclusion on the first ground
of claim that failure to use a cardiopulmonary bypass or a Gott
Shunt used prophylactically did not constitute negligence.
XII
INFORMED CONSENT: THE SECOND GROUND OF CLAIM
[71] The question of informed consent was the second ground of
claim at the trial and the second principal argument on the
appeal.
[72] In the course of oral argument we asked for additional
written submissions with respect to informed consent in
relation to a person of Melanie's age at the time of this
operation, namely sixteen years and three months. The
questions we asked were these:
1. As a matter of law was the informed consent of
Melanie required in this case? If so did the
Reibl standard apply or did an Infants Act
standard apply or did both standards apply or
did some other standard apply?
2. As a matter of law was the informed consent of
Mr. and Mrs. Van Mol required in this case? If
so did the Reibl standard apply or did some
other standard apply or did both apply?
We received supplementary written submissions from counsel on
those two questions, though both questions had been addressed
in the factums and the oral submissions.
[73] I propose to discuss, first, in Part XIII, the capacity of
a sixteen- year old patient in British Columbia in 1990 with
respect to informed consent, and the position of the parents of
the sixteen-year old patient. Then I propose to consider, in
Part XIV, the applicable standard of care for a doctor in
relation to the informed consent of a patient of full capacity
where there are surgical alternatives carrying different risks.
After that, in Part XV, I will turn to this particular
operation, a third coarctation repair to be conducted on this
particular patient, Melanie, and consider the applicable
standard of care in relation to informed consent. In Part XVI
I will consider the evidence in relation to the question of
whether informed consent was given in this case and, in
particular, whether the trial judge erred, as submitted by the
appellant, when she concluded that Dr. Ashmore was not in
breach of his duty with respect to obtaining consent to his
surgical plan. I will then, in Part XVII, state my summary and
conclusions on the second ground of claim, relating to informed
consent.
XIII
INFORMED CONSENT: A SIXTEEN-YEAR OLD PATIENT
[74] In this Part XIII, I will consider the law on the capacity
of a sixteen-year old patient in British Columbia in 1990 with
respect to giving informed consent to medical treatment, and I
will consider also the position of the parents of the sixteen-
year old patient with respect to giving informed consent to the
medical treatment of a sixteen-year old.
[75] At common law, without any reference to statute law, a
young person, still a minor, may give, on his or her own
behalf, a fully informed consent to medical treatment if he or
she has sufficient maturity, intelligence and capability of
understanding what is involved in making informed choices about
the proposed medical treatment. If a young person does not
have that degree of maturity, intelligence, and capability of
understanding, then that young person cannot give informed
consent to proposed medical treatment, and the consent must be
given by a parent or guardian. But once the required capacity
to consent has been achieved by the young person reaching
sufficient maturity, intelligence and capability of
understanding, the discussions about the nature of the
treatment, its gravity, the material risks and any special or
unusual risks, and the decisions about undergoing treatment,
and about the form of the treatment, must all take place with
and be made by the young person whose bodily integrity is to be
invaded and whose life and health will be affected by the
outcome. At that stage, the parent or guardian will no longer
have any overriding right to give or withhold consent. All
rights in relation to giving or withholding consent will then
be held entirely by the child. The role of the parent or
guardian is as advisor and friend. There is no room for
conflicting decisions between a young person who has achieved
consenting capacity, on the one hand, and a parent or guardian,
on the other.
[76] The propositions of law in the previous paragraph are of
long-standing duration. The discretion of a child to make his
or her own decisions before achieving the age of majority in
relation to important life events is discussed in Blackstone's
Commentaries, 17th ed. (1830) vol. 1 c.16 and 17, at p.463, as
mentioned in the leading English authority of Gillick v. West
Norfolk, [1986] 1 A.C. 112, particularly by Lord Fraser of
Tullybelton and Lord Scarman, which reaffirms the common law
position as I have described it in the previous paragraph.
[77] In Ney v. Canada (Attorney General) (1993), 102 D.L.R.
(4th) 135 (B.C.S.C.), Madam Justice Huddart, in a fully
researched set of reasons, summarized the common law position
in British Columbia in this way, at p.142:
In sum, where a child has sufficient intelligence and
understanding of the nature of proposed health care,
he or she is capable at common law of consenting to
such treatment. If a child does not meet this test,
and as a result is incapable of consenting, the
consent of the parents of that child will be
required.
That passage was cited with approval and agreed with by Chief
Justice McEachern in a judgment for a majority in this Court in
Regina v. W.(D.D.) (1997), 114 C.C.C. (3d) 506 at 518. Chief
Justice McEachern added this observation:
It goes without saying, of course, that any consent,
to be valid, must be a fully informed consent: Reibl
v. Hughes, [1980] 2 S.C.R. 880.
[78] Madam Justice Huddart referred to Lord Nathan's work:
Medical Negligence (1957) and to an article by Professor Skagg:
Consent to Medical Procedures on Minors (1973), 36 M.L.R. 370,
at 372-3. Madam Justice Huddart also referred to this passage
from the majority reasons of Lord Scarman in the Gillick case,
at p.188:
The modern law governing parental right and a child's
capacity to make his own decisions was considered in
Reg. v. D., [1984] A.C. 778. The House must, in my
view, be understood as having in that case accepted
that, save where statute otherwise provides, a
minor's capacity to make his or her decision depends
upon the minor having sufficient understanding and
intelligence to make the decision and is not to be
determined by reference to any judicially fixed age
limit.
At pp. 188-9, Lord Scarman continued:
In light of the foregoing I would hold that as a
matter of law the parental right to determine whether
or not their minor child below the age of 16 will
have medical treatment terminates if and when the
child achieves a sufficient understanding and
intelligence to enable him or her to understand fully
what is proposed. It will be a question of fact
whether a child seeking advice has sufficient
understanding of what is involved to give a consent
which is valid in law. Until the child achieves the
capacity to consent, the parental right to make the
decision continues save only in exceptional
circumstances.
[79] The articulation of the common law position by the New
Brunswick Court of Appeal in Walker v. Region 2 Hospital Corp.
(1994), 116 D.L.R. (4th) 477 is no different than the common
law of England and of British Columbia as I have set it out.
At p.487, Chief Justice Hoyt put the common law position in
this way:
In Canada, the common law recognizes the
doctrine of a mature minor, namely, one who is
capable of understanding the nature and consequences
of the proposed treatment. Accordingly, a minor, if
mature, does have the legal capacity to consent to
his or her own medical treatment. See Rozovsky and
Rozovsky, The Canadian Law of Consent to Treatment
(Toronto and Vancouver: Butterworths, 1990), at pp.
53-5 and to the cases referred to therein. At common
law, when a minor is mature, no parental consent is
required.
[80] I propose to move on now to the relevance, if any, of the
statute law in effect in 1990.
[81] A new section of the Infants Act with respect to medical
treatment was enacted in 1973 and was in effect in 1990. It
was subsequently modified in 1992. In 1990, the relevant time
for this case, it read:
Consent of infant to medical treatment
16. (1) Subject to subsection (4), the consent
of an infant who has attained 16 years of age to
surgical, medical, mental or dental treatment which,
in the absence of consent, would constitute a
trespass to his person, shall be as effective as it
would be if he were of full age.
(2) Where an infant has, by virtue of this
section, given his consent to any treatment it is not
necessary to obtain a consent from his parent or
guardian.
(3) In this section "surgical, medical or
mental treatment" means any procedure undertaken by a
medical practitioner, ....
(4) Nothing in this section makes a consent
effective unless
(a) a reasonable effort has first been
made by the medical practitioner or
the dentist to obtain the consent of
the parent or guardian of the infant;
or
(b) a written opinion from one other
medical practitioner or dentist is
obtained confirming that the surgical,
medical, mental or dental treatment
and the procedure to be undertaken is
in the best interest of the continued
health and well being of the infant.
(5) This section does not make ineffective a
consent which would have been effective if the
section had not been enacted.
(6) A medical practitioner or dentist who
treats an infant under subsections (1) and (2)
without consent from his parent or guardian may
provide the parent or guardian of the infant with the
information the person treating the infant considers
advisable.
[82] This section 16 precisely tracks the wording of s.8 of the
English Family Law Reform Act, 1969 though s-s.(4) has been
added to s.16 of the Infants Act and did not appear in the
English legislation.
[83] The 1973 addition to the Infants Act was subjected to well
argued criticism by Professor Richard Gosse in an article:
Consent to Medical Treatment: A Minor Digression (1974), 9
U.B.C. Law Review 56. Many of Professor Gosse's criticisms
were met in the substantial amendment to the legislation in
1993.
[84] Let us suppose, for the purposes of this Part of these
reasons, that Melanie, at age 16 years and 3 months in
February, 1990, through her maturity, intelligence and
capability of understanding what was involved in the treatment,
had the capacity at common law to give an informed consent to
this third coarctation repair procedure. There is nothing in
s.16 which would invalidate any fully informed consent that she
had given at that time. The same is true of any informed
consent given by Melanie at age 15, when she was first admitted
to B.C. Children's Hospital in 1989, for the purposes of
undertaking this procedure, again assuming that she had the
capacity to consent at common law at that time. By s-s.(5) it
is provided that s.16 does not make ineffective a consent which
would have been effective if s.16 had not been enacted. The
precise effect of that very subsection (5) was considered by
Lord Fraser of Tullybelton and by Lord Scarman in the Gillick
decision. They decided that s-s.16(5) is to be taken as
confirming the common law, without stating what the common law
is, in relation to minors under the age of 16. And it cannot
be supposed that a 15 year old with capacity to consent to a
particular procedure would lose that capacity on turning 16.
[85] It must also be particularly noted that there is nothing
in s.16 which would substitute the consent of a parent or
guardian for the consent of a young person who has achieved
capacity to give fully informed consent through maturity,
intelligence and capability of understanding the procedure to
be undertaken.
[86] At a minimum, what s.16 does is give protection to doctors
who might otherwise be at risk in relation to the commission of
an act of battery or other trespass to the person, because they
are uncertain of a particular young person's capacity to give
consent. The protection arises from allowing the doctor to
rely on knowledge that the young person is 16 years old and has
given apparent consent to the medical treatment.
[87] A strong argument can be made that s.16 goes even further
and that it makes a 16 year old person the only person who can
give informed consent to that person's own medical treatment,
though it also obliges the doctor to endeavour to obtain either
the consent of the parent or guardian, or a written opinion
from another medical practitioner that the treatment is in the
best interests of the young person. The only difficulty in the
way of that argument is that after the predecessor of s.16 was
enacted in England, and after s.16 was enacted in Canada, the
Supreme Court of Canada decided Reibl v. Hughes which changed
the law in relation to the nature of the tort committed through
a failure to obtain informed consent, so that failure to obtain
apparent consent at all constituted a trespass to the person,
but obtaining apparent consent by doing so without a proper
risk discussion ceased to be the tort of trespass to the person
and was confirmed to be the tort of negligence. As I have
said, a strong argument can be made, as a matter of statutory
interpretation, that the legislature, when it enacted s.16, was
intending to deal with what would otherwise be both the tort of
proceeding without apparent consent and also the tort of
proceeding without a fully informed consent. But on the view I
take of this case, it is unnecessary to decide that question.
[88] I do not think that it is necessary for me to discuss the
question of the capacity of a sixteen-year old any further,
since neither party to this appeal disagreed with the essence
of the law as summarized by Madam Justice Huddart in Ney.
[89] The position of the parents at common law is
straightforward. If the child does not have sufficient
intelligence and understanding to have the capacity to consent,
then only the parents can consent and their consent will be
sufficient. But once the child has sufficient intelligence and
understanding to have the capacity to consent, then only the
consent of the child will do. The capacity of the parents to
consent on behalf of the child does not coexist with the
child's own capacity to consent or to refuse consent. It could
not be otherwise. But that is not to say that the parents need
not be involved in the process of explanation, instruction and
advice leading to the obtaining of the informed consent of the
child. They should be involved as part of that process
wherever possible.
XIV
INFORMED CONSENT: SURGICAL ALTERNATIVES
[90] In this Part I propose to consider whether Dr. Ashmore was
required by law to discuss the surgical alternatives for this
operation with the person capable of giving informed consent to
the operation.
[91] What has become the classic statement of the doctrine of
informed consent in Canada is this passage from the reasons of
Chief Justice Laskin, for the Supreme Court of Canada, in Hopp
v. Lepp, [1980] 2 S.C.R. 192 at p.210:
In summary, the decided cases appear to indicate
that, in obtaining the consent of a patient for the
performance upon him of a surgical operation, a
surgeon, generally, should answer any specific
questions posed by the patient as to the risks
involved and should, without being questioned,
disclose to him the nature of the proposed operation,
its gravity, and any material risks and any special
or unusual risks attendant upon the performance of
the operation. However, having said that, it should
be added that the scope of the duty of disclosure and
whether or not it has been breached are matters which
must be decided in relation to the circumstances of
each particular case.
(my emphasis)
[92] That passage was affirmed by the Supreme Court of Canada
in Reibl v. Hughes, [1980] 2 S.C.R. 880, a case dealing with
causation if negligence is first established, and setting out
the modified objective test for causation, recently reaffirmed
by the Supreme Court of Canada in Arndt v. Smith, [1997] 2
S.C.R. 539. The passage has been applied many times and is
thoroughly embedded in the law.
[93] The question that I am addressing in this Part relates to
the substance of the risk discussion that would have had to
take place between a doctor in Dr. Ashmore's position and a
patient of full age and capacity undergoing the third
coarctation repair procedure that Melanie was about to undergo,
in order to fulfil the requirements of the law in relation to
informed consent.
[94] The evidence has shown that a third coarctation repair
operation was the correct medical treatment for Melanie. That
is not disputed. But the principles established by Reibl v.
Hughes do not merely require that simple consent to the
operation be obtained. Such a simple consent does not meet the
qualification that the consent must be "informed". In order to
meet the qualification carried by the word "informed" more must
occur than just a discussion of the medical purpose of the
operation and what is proposed to be done to carry out the
medical purpose. The Reibl standard explicitly requires that
in addition to describing the nature of the operation,
including its gravity, there must be a discussion of "any
material risks and any special or unusual risks attendant upon
the performance of the operation". So the precise question on
the nature of the discussion which should have taken place
between a doctor proposing to carry out a third coarctation
repair on a person of full age and capacity in a position like
Melanie's is whether the three surgical alternatives should
have been put to such a person, with an assessment of the risks
of each.
[95] It would also follow from my second conclusion in Part XI
that any risk discussion of the three alternatives should have
included: first, a statement that "extra safety" was given by
the use of prophylactic protection in the form of a
cardiopulmonary bypass, hooked up or ready to be hooked up, or
a Gott Shunt used prophylactically; second, a statement that it
was not Dr. Ashmore's intention to use prophylactic protection;
third, a statement of why Dr. Ashmore did not intend to use
prophylactic protection; and fourth, a statement that a second
opinion could be obtained or a statement that either Dr.
Ashmore would adopt the surgical technique chosen as a
preferable option by the patient in Melanie's position or would
obtain for Melanie another competent surgeon to do the
operation who would adopt the option preferred by the patient
in Melanie's position. But the essential question is whether
the three principal surgical alternatives should have been
discussed with the person capable of giving informed consent.
[96] The question of whether a risk discussion should include a
discussion of the available surgical alternatives has been
addressed in a number of cases.
[97] In Dow Corning Corporation v. Hollis, [1995] 4 S.C.R. 634,
Mr. Justice La Forest, for the majority in the Supreme Court of
Canada, at p.656, approved this passage from Canterbury v.
Spence, 464 F.2d 772 (D.C. Cir., 1972) at p.780:
True consent to what happens to one's self is the
informed exercise of a choice, and that entails an
opportunity to evaluate knowledgeably the options
available and the risks attendant upon each. The
average patient has little or no understanding of the
medical arts, and ordinarily has only his physician
to whom he can look for enlightenment with which to
reach an intelligent decision.
(my emphasis)
[98] The issue was discussed in Malette v. Shulman (1990), 67
D.L.R. (4th) 321 (Ont.C.A.). That case involved the giving of
a blood transfusion to someone who carried a card saying that
she did not wish a blood transfusion even in an emergency. Mr.
Justice Robins, for the Ontario Court of Appeal, said this, at
pp.327-8:
The doctrine of informed consent has developed
in the law as the primary means of protecting a
patient's right to control his or her medical
treatment. Under the doctrine, no medical procedure
may be undertaken without the patient's consent,
obtained after the patient has been provided with
sufficient information to evaluate the risks and
benefits of the proposed treatment and other
available options. The doctrine presupposes the
patient's capacity to make a subjective treatment
decision, based on her understanding of the necessary
medical facts provided by the doctor and on her
assessment of her own personal circumstances.
. . .
The right of self-determination, which underlies
the doctrine of informed consent, also obviously
encompasses the right to refuse medical treatment. A
competent adult is generally entitled to reject a
specific treatment or all treatment, or to select an
alternative form of treatment, even if the decision
may entail risks as serious as death and may appear
mistaken in the eyes of the medical profession or of
the community.
. . .
The doctrine of informed consent is plainly intended
to ensure the freedom of individuals to make choices
concerning their medical care. For this freedom to
be meaningful, people must have the right to make
choices that accord with their own values, regardless
of how unwise or foolish those choices may appear to
others.
(my emphasis)
[99] In Haughian v. Paine (1987), 37 D.L.R. (4th) 624; 40
C.C.L.T. 13 (Sask.C.A.) Mr. Justice Sherstobitoff for the
Court, said, at D.L.R. p.644:
One cannot make an informed decision to undertake a
risk without knowing the alternatives to undergoing
the risk.
(my emphasis)
[100] To the same effect, Mr. Justice Hollinrake, for this
Court, said in Johnston v. Boyd (1996), 82 B.C.A.C. 113, at
paras.18-22, that an explanation of surgical options, including
but not limited to the option of doing nothing, is required for
informed consent.
[101] This issue was also addressed in Seney v. Crooks,
[1996] 9 W.W.R. 423, 30 C.C.L.T. (2d) 66 (Alta.Q.B.), a
decision of Mr. Justice McIntyre. At paras. 60-62, this was
said:
The doctor-patient relationship is a joint
venture. Doctors must discuss the risks, advise
patients of possible adverse results, and give the
patient an opportunity of understanding and
participating in the healing process. In my view,
Dr. Crooks failed to meet either the medical standard
of developing a doctor-patient relationship or the
legal standard of disclosure of risk and discussion
of options.
Dr. Crooks did not establish a relationship of
trust. There was little communication with the
patient. He did not describe to her in any detail
her medical condition - he said it was a typical
wrist break. He did not disclose to her the clear
risk of the wrist shortening, the risk of deformity,
or the risk of loss of function. Most importantly, he
did not discuss with her other options. External
fixation was an option then utilized in Calgary by
orthopaedic surgeons of ordinary ability. As I said,
I am persuaded that external fixation would have
avoided the bad result. Dr. Crooks should have
discussed this option with her and made a
recommendation. Mrs. Seney did not have the chance
to assess this option.
I find a breach of Dr. Crook's standard of care
in respect of communication, disclosure and
discussing options with his patient.
(my emphasis)
[102] In my opinion, a person of full age and capacity, but
otherwise in the position that Melanie was in just before this
surgery, would have been entitled to know about the three
alternative methods of carrying out this third coarctation
repair operation and about the risks and advantages of each.
[103] In relation to my second conclusion in Part XI I
consider also that such a person would have been entitled to
know: first, that the risk of paraplegia, the risk of death,
and the other overall risks of this operation would be reduced,
and "extra safety" achieved, if prophylactic protection in the
form of a bypass machine or a Gott Shunt used prophylactically
were to be employed in this third coarctation repair, where
dense adhesions and a friable aorta should have been
anticipated; second, that Dr. Ashmore did not propose to use
prophylactic protection; and, third, that such a person of full
age and capacity could obtain a second opinion, and if such a
person decided to have the operation with prophylactic
protection then Dr. Ashmore would either have used that
technique, or, alternatively, arranged for a skilled surgeon
who would have used a prophylactic technique.
XV
INFORMED CONSENT: THE STANDARD OF CARE FOR MELANIE
[104] In this Part I propose to discuss the precise
evidence in relation to Melanie and to reach a conclusion about
whether she was the person capable of giving informed consent
to this surgical procedure.
[105] By the time the trial took place in 1996 Melanie was
22 years old. She was in the final term of her program of
studies leading to a Bachelor of Arts degree at the University
of Victoria. Her major field of study was Psychology. We can
infer that Melanie, at age 16 years and 3 months when the
operation took place, was an intelligent young woman.
[106] Melanie was selected in 1989 by Nurse Cook, a cardiac
care nurse involved with Melanie's care both before and after
the operation, to be the subject of a video being prepared by
the B.C. Children's Hospital. The video was designed to allay
the fears and apprehensions of youngsters about to undergo
serious surgery at the hospital, particularly cardiac surgery.
Nurse Cook described Melanie in this way, in examination in
chief:
Q Now, I just want to come generally to your
dealing with Melanie. Can you describe for Her
Ladyship the assessment you made of Melanie's
intelligence and maturity?
A Melanie, when I met her, was a bright
articulate, adolescent girl.
Q And was she communicative?
A Yes, she was.
Q And did that have a bearing on your selection of
her to be in the video?
A Yes, we needed someone in the video that was
able to articulate their feelings clearly for
other teenagers and also to be able to engage in
a conversation with other teenagers.
[107] After Mr. and Mrs. Van Mol received Dr. Patterson's
letter of March 1989 recommending a third coarctation repair
operation they discussed the proposed surgery with Melanie and
arranged for Melanie to discuss it with Dr. Sheila Burnside,
the family's doctor in Kamloops where they lived. On 11 April,
1989 Melanie saw Dr. Burnside for prolonged counselling about
the operation. On 19 April Melanie saw Dr. Burnside again.
Dr. Burnside recorded that Melanie was "Still weeping when
talking on the surgery, but less so." Dr. Burnside also noted
that "Melanie was crying because she was worried about the
operation." After the meeting Dr. Burnside decided that
Melanie should see Dr. Patterson "... to have a full
description of forthcoming surgery explained." On 20 April
1989, Dr. Burnside wrote to Dr. Patterson in these terms:
I have had a couple of chats with Melanie, and she is
quite anxious to talk to either yourself or Dr.
Ashmore ahead of time about exactly what will happen
at the surgery.
(my emphasis)
[108] Dr. Ashmore, like the other defendant doctors,
admitted the following facts by a formal written admission:
It was Dr. Burnside's expectation that Melanie and
her parents would be provided, by Dr. Ashmore or Dr.
Patterson, with a description of the forthcoming
surgery including:
(a) a review of the surgical procedure including a
technical review setting out in layman's terms
whether something was going to be "stitched" or
"cut out";
(b) the reasons why this surgery was necessary;
(c) the results that the surgeons hoped to obtain;
(d) the risks the surgeons hoped to avoid in the
course of the operation.
Dr. Burnside understood it was Melanie's desire to
receive information about what she was to expect with
respect to the surgery, what her options were and
what the risks were.
Dr. Burnside's own understanding was that because
Melanie was more full grown there was a better chance
that the same operative technique would be successful
the third time around and that the third operation
was technically easier and she advised Melanie of
this.
Dr. Burnside was not informed by either Dr. Patterson
or Dr. Ashmore, prior to February 26, 1990, that the
operation was as or more risky than the prior two
operations.
On or about April 20, 1989, Dr. Burnside spoke with
Dr. Patterson to convey to him, inter alia, Melanie's
concerns about the upcoming surgery. After talking
to Dr. Paterson, Dr. Burnside was more comfortable
about the operation proceeding and accepted his
recommendation for proceeding with the proposed
surgery.
Dr. Burnside never had a discussion with Melanie or
her parents about the risk of paraplegia arising rom
the operation.
At no time prior to the operation of February 26,
1990, was Dr. Burnside aware of, or informed by
either Dr. Patterson or Dr. Ashmore, as to any
specific risks associated with the operation
including the risk of paraplegia.
Melanie never indicated to Dr. Burnside as to whether
or not she had been advised of any specific risks
associated with the operation, and in particular,
Melanie never mentioned whether or not she had been
informed by either Dr. Patterson or Dr. Ashmore of
the risks of paraplegia. It was Dr. Burnside's
understanding that after Melanie had met with Dr.
Patterson to discuss the operation that Melanie's
questions had been answered and she was much more
comfortable about going ahead with the surgery and
that her anxiety had been reduced.
Dr. Burnside had not expected, and was not prepared
for the outcome of the surgery on February 26, 1990,
leaving Melanie a paraplegic.
(my emphasis)
[109] Based on that evidence, there could be no doubt, in
my opinion, that Dr. Burnside regarded Melanie as having the
intelligence and understanding to give a full informed consent;
to have all her questions answered; to be informed of the
material risks, and the unusual or special risks, including the
risks the surgeon hoped to avoid in the course of the
operation; and to have all the relevant options explained to
her so that she could make an informed decision.
[110] Counsel for Dr. Ashmore referred to this passage from
Reibl v. Hughes at p.895:
Again, it may be the case that a particular patient
may, because of emotional factors, be unable to cope
with facts relevant to recommended surgery or
treatment and the doctor may, in such a case, be
justified in withholding or generalizing information
as to which he would otherwise be required to be more
specific.
Counsel submitted that Dr. Ashmore decided to generalize to
some extent the information he gave to Melanie because of his
assessment of Melanie's emotional condition. She was said to
be apprehensive and to have had irrational fears about being
murdered during the surgery. She is also said to have claimed,
presumably metaphorically and not literally, that she would
walk into the operating theatre and she would walk out.
[111] The trial judge made no finding that Melanie lacked
the full capacity to give an informed consent to the operation.
[112] In my opinion the evidence is abundant and compelling
that Melanie had the same capacity as any person of full age
and capacity and was entitled to be treated in the same way
that any person of full age and capacity should have been
treated. She is and was intelligent. She had an understanding
of the proposed medical procedure. She was interested in what
was going to happen, and if allowed to exercise it, she had a
probing curiosity about the problems, the risks, and the
surgical alternatives which might be available. She was not
incapacitated in any way by emotional upset or irrational fears
from being given all the information that a person of full age
and capacity should have been given.
[113] It is in relation to such a patient that the standard
of care required of Dr. Ashmore must be set.
XVI
INFORMED CONSENT: THE FINDINGS AND THE EVIDENCE
[114] The trial judge in this case treated Melanie's
parents as the people who must give informed consent to
Melanie's surgery.
[115] At para.120 of her reasons, Madam Justice Kirkpatrick
said this:
[C]ounsel for the defendants contend that the test in
respect of informed consent is three-fold:
(1) if the physician properly identified and
discussed surgical risks with his or her
patient (or, in these circumstances, with
the patient's guardians), and a surgical
risk results causing injury to the patient,
a claim in negligence for failure to obtain
informed consent will be dismissed;
(my emphasis)
[116] In paras. 122 to 130 of her reasons, Madam Justice
Kirkpatrick considered the issue of informed consent. She
considered the evidence of Mr. and Mrs. Van Mol and the
evidence of Melanie. She said that none of them remembered any
risk discussion with Dr. Ashmore. She also considered Dr.
Ashmore's evidence which was that it was his practice to have a
risk discussion with the parents of any child he proposed to
operate on and also to have a discussion of some sort with the
child. Madam Justice Kirkpatrick referred to medical
literature which was put to Dr. Gillis and Dr. Cornel, and
which she said was to some extent accepted by them, to the
effect that, in general, patient recollection of risk
discussions is poor.
[117] Madam Justice Kirkpatrick stated her conclusion in
this way at para.130:
It is exceedingly difficult to determine whether
the appropriate risk discussion took place. Melanie
and her parents obviously believe that no such
discussion took place. Dr. Ashmore's evidence as to
his recollection of discussion of risk and as to his
usual practice was candid and credible. There are
none of the markers of dishonesty or deception in any
of their testimony upon which a finding is easily
made. However, considering the evidence as a whole,
I conclude that, on a balance of probabilities, Dr.
Ashmore had the appropriate risk discussion with the
Van Mols.
(my emphasis)
[118] I have three observations about that conclusion. The
first is that it was conceded by Madam Justice Kirkpatrick to
have been a very close call. The second is that the finding is
that "the appropriate risk discussion" took place, though Madam
Justice Kirkpatrick does not identify at any point what key
features would have had to be incorporated in the appropriate
risk discussion, and does not find that any discussion of the
technique of using prophylactic protection in the form of a
Gott Shunt or bypass machine took place with anyone. My third
observation is that Madam Justice Kirkpatrick found that the
risk discussion took place with "the Van Mols". In the
following paragraph of the reasons, para.131, it is made clear
by the reference to the Van Mol's children that where Madam
Justice Kirkpatrick refers to "the Van Mols" she means Mr. and
Mrs. Van Mol and does not include Melanie.
[119] That leads me to these three conclusions. First,
Madam Justice Kirkpatrick considered that it was with Mr. and
Mrs. Van Mol that Dr. Ashmore should have had the appropriate
risk discussion and obtained the appropriate consent to the
surgical procedure being performed on Melanie. In my opinion
that conclusion was in error in both fact and law on the mixed
question of fact and law that it represents. My second
conclusion is that there is no finding that any "appropriate
risk discussion" took place between Dr. Ashmore and Melanie.
My third conclusion is there is no finding that any risk
discussion which did take place with Mr. and Mrs. Van Mol
included disclosure of the possibility of performing the third
coarctation repair on Melanie with the use of prophylactic
protection, or that many surgeons would have done it that way,
or that the surgeons who did it that way would have considered
that such a technique provided extra safety protection against
the risk of paraplegia and other risks.
[120] I turn now to the evidence about the pre-operative
risk discussion between Dr. Ashmore and Melanie. The
background is that Melanie was vitally interested. She talked
about the details of the operation a number of times with Dr.
Sheila Burnside, her family physician. Dr. Burnside considered
that the risk discussion and the informed consent discussion
should take place with either Dr. Patterson or Dr. Ashmore.
Dr. Burnside wrote to Dr. Patterson and spoke to him by
telephone. She expected that Dr. Patterson or Dr. Ashmore
would cover in the discussion with Melanie "the risks that the
surgeons hope to avoid in the course of the operation". Dr.
Patterson and Dr. Ashmore agreed that it would be Dr. Ashmore
who would have whatever discussions were to take place with Mr.
and Mrs. Van Mol and with Melanie. On discovery, Dr. Ashmore
said this about holding a risk discussion with Melanie:
I think we discussed what we were going to do and
basically what we were going to do is what we did in
the second operation and that's - I would - as I
recall that's what we discussed. More precise than
that I don't think I can be...I cannot recall a
precise moment of sitting there and talking to her
nor can I recall any more detail than that, but this
is my practice and certainly in people or in
youngsters of Melanie's age it is very much my
practice to do that.
(my emphasis)
[121] When he came to give evidence at the trial, Dr.
Ashmore was asked about the risk discussion in examination in
chief. The transcript indicates these questions and answers
about Dr. Ashmore's general practice with children:
Q Okay. Did you ever discuss either the risks or
the benefits or both of the planned third
surgery with either Melanie or either of her
parents prior to the performance of that third
surgery?
A Yes.
Q And can you tell us when you did that?
A I can't give you chapter and verse about it, but
I can tell you that it was done prior to
surgery. It was also a matter of discussion
that would not have been in the immediate post-
operative period. This discussion -- discussion
of matters of this kind --
Q You said post-operative periods, doctor?
A I'm sorry, pre-operative, excuse me. Matters of
this kind are really a sort of continuum of
information, because when you first detect that
the surgery might be necessary, as was done in
Melanie's case, you start talking about the
risks and benefits a long time before they get
into hospital. The cardiologists do and
surgeons do.
And so that the parents and the child knows
why they're going to the hospital in the first
place. The final discussion might -- would, of
course, be in the pre-operative period, and that
would be my responsibility.
But again, my lady, because of our concern
about this -- the repercussions and the family
dynamics and worries that this, an operation of
this kind clearly generates, we have a number of
other -- we have developed a number of other
support systems in personnel that can also deal
with questions that the family might have,
indicate to them that we are aware of their
concerns, give them an opportunity to discuss
the matter, with people other than myself.
Now, in this case I would have no -- I had
no trouble discussing this with the Van Mol
family because I'm -- I know them well. We had
operated twice. But I certainly would and did
discuss it,including the benefits and the risks
prior to surgery.
As far as Melanie's concern, we knew that
she was concerned and naturally she would be.
We had some information from one of her
physicians in Kamloops that she had some
questions. And all children have questions,
teenagers more than others.
And I can enlarge on this a little bit
because this is a very important problem -- not
problem, but consideration for us. And that is
how to deal with the discussion of major surgery
with a child, as well as with the parents.
I have a sort of basic principle that I
follow, basic -- I guess principle is a good way
to put it. Because I've found that children
want certain information. They -- first of all,
they don't want to be excluded from the process.
Even little children don't want to be excluded.
They want to know that it's not just a bunch of
adults that are making the decisions, and so
they like to be involved to some extent.
Secondly, the children like to -- want to
know certain things. They want to know if
whoever does the operation is someone that they
like or trust or have some comfort about. They
want to know what's going to happen to them
afterwards. They want to know if somebody is
going to be there who is going to look after
them. And they want to know whether it's going
to hurt. So we address that in talking to the
children. And they always want to know if their
parents are going to be around.
So with that sort of general background, I
think I always address the discussion with the
child with that in mind. But then you modify it
as they get older. And when you're dealing with
an adolescent, such as Melanie, you've got some
new problems because you, as most of us know,
talking to an adolescent and trying to discuss
with them what you want them to do is not
necessarily an easy problem. I mean, you can't
even tell them to go and clean their bedroom
sometime because they don't want to do that, and
they may not do that.
So you have to approach that with special
considerations. But again, the most important
thing I found, even with adolescents is what I
mentioned previously, is that you talk to them
about and convince them that there is -- there
are caring people that are going to do the
procedure, look after them subsequently, and
then you address certain major problems.
And I always tell adolescents that there is
a cause of death -- a possibility of death. And
I again modify this a little bit depending on
the nature of the child or patient. We tell them
that there is a possibility of complications.
That they may have some weakness afterwards,
they may have an infection afterwards. But I
don't, I don't give them the same message I give
the parents.
I once discussed the concerns about an
operation with a 15 year old boy, giving it my
very best approach, and that night he
disappeared and he wasn't in the hospital. And
he vanished for three days. Nobody saw him.
Including his parents, for three days.
We finally found him and he came back and
we finally operated on him and he was fine. We
closed the hole in his heart. The only reason I
mention that is that this is a complex problem
that we have to deal with.
So that's a very long answer to your
question, but yes, we do -- I did discuss this
with Melanie. Melanie and I discussed a lot of
things, but we discussed this. And oh, I should
mention, of course, Melanie also discussed this
matter -- tragically she was involved in making
a film that -- where we -- the essence of the
film, the video, was so that adolescents could
discuss their concerns about surgery prior to
the surgery, and she was involved in that
procedure.
(my emphasis)
[122] More precisely, with respect to Melanie herself, the
transcript gives these questions and answers in examination-in-
chief:
Q Did you ever speak with Melanie, in the absence
of her parents, prior to her third operative
procedure, to discuss the risk and benefits?
A Well, I think I did. I don't have a
recollection of the context so much as I do, I
remember sort of sitting on her bed in the
hospital before hand, and I think that was in
response to, was Dr. Burnside's letter -- well,
not totally, but Dr. Burnside had mentioned
Melanie's concerns.
I have a recollection of sitting in her bed
in her room and talking about this, and I must
say I have a recollection that that was with --
by herself. I may well have talked to her in
addition with her parents present. I can't say
precisely.
Q What did you discuss with Melanie in terms of
risks and benefits?
A Well, again, I -- she wanted to know what we
were going to do. So I told her what we would
be doing. We would try to replace the -- or to
repair the narrowed area and that we would put
another patch on it, in all likelihood. And
that we would hope that this would be the last
time she would ever have to bother with it
again.
She knew the possibility of death, and I
would mention that, although I don't suppose I
would dwell on it. But I would say, you know,
there can be a situation where you might not
survive. But we have -- we don't have that very
often, and it's uncommon.
And I would say to her that there was
possibility of damage to her other organs.
My lady, I must say, I can't specifically
recall, in Melanie's case, whether I talked
about paraplegia or not. I did to the parents,
talk about spinal cord damage. But I'm not sure
if I did with Melanie. Again, bearing in mind
what I said before the break, that this is a
difficult area, but I probably did.
(my emphasis)
[123] It is, I think, clear from Dr. Ashmore's choice of
words: "I think I did"; "I have a recollection..."; "I would
mention that..."; "I would say to her..."; "this is a difficult
area but I probably did"; that Dr. Ashmore did not actually
remember any risk discussion with Melanie herself beyond a few
words of reassurance as he sat on her bed, and that from his
reassuring approach to children generally, and his guarded
approach to discussions with adolescents, that any conclusion
drawn from his general practice with children could not support
a conclusion that a proper risk discussion had taken place with
Melanie herself, even if one had taken place with her parents.
It must be remembered that Dr. Ashmore's general practice with
children was developed for its suitability for use in a
children's hospital where Dr. Ashmore had practised for some
years. It may not have been suitable for a sixteen-year old of
full consenting age and capacity.
[124] In the circumstances, the evidence is compelling that
Dr. Ashmore did not discuss with Melanie the possibility of
using prophylactic protection, either in the form of a bypass
machine or a Gott Shunt used prophylactically. The surgical
alternative methods were not discussed with Melanie at all.
Nor was it said that the use of a cardiopulmonary by-pass
machine could provide extra safety and risk reduction in the
operation. The evidence is also compelling that Dr. Ashmore
did not advise Melanie that many surgeons adopted those means
for extra protection and that she had the option of having that
protection during the surgery either as performed by himself or
as performed by another qualified surgeon who would be willing
to use those prophylactic measures.
[125] The evidence is also compelling that neither the
three surgical alternatives nor the use of prophylactic
protection "for extra safety" was discussed by Dr. Ashmore with
Mr. or Mrs. Van Mol.
XVII
INFORMED CONSENT: SUMMARY AND CONCLUSIONS
[126] In my opinion, Melanie, at the age of sixteen years
and three months at the time of her operation, and being an
intelligent person with a good understanding of medical
procedures and a lively curiosity about her own health, was the
only person who could give the required informed consent to
this third coarctation repair operation being conducted by Dr.
Ashmore.
[127] As part of the process of obtaining informed consent,
Dr. Ashmore was required to tell Melanie about the three
alternative methods for this third coarctation repair operation
including the methods that were available and in widespread use
of using a bypass machine or other prophylactic protection when
performing this operation, particulary when, as here, dense
adhesions and a friable aorta should have been, and were,
anticipated. Dr. Ashmore should have made it possible, as
well, for Melanie to exercise a choice to ask for prophylactic
protection, either by asking Dr. Ashmore to use it, or by
asking for a second opinion and for help in finding a well
qualified surgeon to perform the operation using that
prophylactic protection.
[128] Dr. Ashmore did not engage in such a discussion with
Melanie and in failing to do so he was, in the circumstances,
in breach of a duty of care to her. He deprived her of the
opportunity to make an informed choice of having the operation
performed with prophylactic protection in place.
[129] If Melanie had been given the information that she
ought to have been given, then, had she been the person
contemplated in the modified objective test established in
Reibl v. Hughes and reaffirmed in Arndt v. Smith, the evidence
is compelling that she would have opted for the use of
prophylactic protection in the form of a bypass machine which
was in widespread use, perhaps even in universal use, by
younger surgeons for such an operation. If Melanie had opted
for the use of the bypass machine "for extra safety" then, the
risk of no blood flow to the spine and lower limbs following a
tear in the aorta while cross-clamping would have been very
much reduced and, on a balance of probabilities, her lower body
paralysis would not have occurred. See Farrell v. Snell,
[1990] 2 S.C.R. 311.
[130] In short, the breach of duty of Dr. Ashmore in
relation to failure to have an adequate risk discussion with
Melanie resulting in depriving her of the choice of having a
bypass machine available or employed in her third coarctation
repair operation was the cause in fact and in law of her
paraplegia.
XVIII
LARYNGEAL NERVE DAMAGE
[131] As well as suffering from non-functional flaccid
paraplegia as a result of what occurred during the surgical
operation, Melanie also suffered injury to her recurrent
laryngeal nerve. That nerve damage has left her with a
somewhat hoarse voice which she has difficulty in modulating.
Her claim against Dr. Ashmore included a claim in relation to
the laryngeal nerve damage.
[132] There is no doubt that the laryngeal nerve damage
occurred during the operation. The damage is near where the
tear occurred in the aorta and where the dissection was being
performed, first by Dr. Ashmore and then by Dr. LeBlanc, in
order to try to control the damage from the tear and to remedy
the coarctation. Dr. Ashmore was working to remedy the tear
for 90 to 110 minutes and, after Dr. LeBlanc took over, the
operative procedure required about another 40 to 45 minutes
before the blood flow was restored to Melanie's spine and lower
limbs.
[133] The precise moment when the damage to the laryngeal
nerve occurred cannot be determined, nor can it be determined
whether the damage occurred when Dr. Ashmore was the active
surgeon or when Dr. LeBlanc was the active surgeon. But in my
opinion, it is not necessary to decide those questions. For
the same reason that it is correct to say that the breach of
duty of Dr. Ashmore in relation to failure to hold an adequate
risk discussion with Melanie, resulting in depriving her of the
choice of having a by-pass machine available or employed in her
third coarctation repair operation, was the cause in fact and
in law of the paraplegia, it is also correct to say that the
same failure was the cause in fact and in law of her laryngeal
nerve damage. If Melanie had opted for the use of the by-pass
machine for "extra safety" then much of the extra dissection
would have been unnecessary, and, on the balance of
probabilities and on the principle in Farrell v. Snell her
laryngeal nerve damage would not have occurred.
[134] In my opinion, the damage to the laryngeal nerve
constituted a compensable head of damage in Melanie's claim
against Dr. Ashmore.
XIX
SYNOPSIS
[135] In these reasons I have reached no conclusion
contrary to the primary findings of fact of Madam Justice
Kirkpatrick, the trial judge.
[136] With respect to Madam Justice Kirkpatrick's mixed
findings of fact and law in relation to the first ground of
claim, I have reached no conclusion contrary to her conclusion
that Dr. Ashmore was not negligent in adopting the surgical
procedure that he adopted, in embarking on the operation
without a system of prophylactic protection in place, or in the
deployment of his skills throughout his involvement in the
operation until he was relieved by Dr. LeBlanc. I have made
four observations in relation to facts or to mixed fact and
law, and I have reached two conclusions on the first ground of
claim, all as set out in Part XI of these reasons. The first
of my conclusions, namely that there were at least three
separate and distinguishable surgical alternatives for
conducting this third coarctation repair operation cannot be
disputed on the evidence. The second of my conclusions, namely
that the surgical alternative of using a cardiopulmonary by-
pass machine, which would provide "extra safety", is supported
by Dr. LeBlanc, by all three of the plaintiff's expert
witnesses, and by Dr. Trusler, the principal expert witness
called by the defendants. Both of those conclusions support my
reasons on the second ground of claim, but only the first is
necessary to find liability in relation to the failure to
obtain a relevant informed consent. The trial judge made no
finding of fact, or of mixed fact and law in any way
inconsistent, expressly or implicitly, with either of those two
conclusions.
[137] With respect to the mixed findings of fact and law of
Madam Justice Kirkpatrick on the second ground of claim, namely
that Dr. Ashmore had a legally proper, appropriate and
effective risk discussion with "the Van Mols", and did not
commit any breach of duty in that respect, I have set out my
opinion on two legal questions which were not addressed by the
trial judge and which make the trial judge's conclusion, in
relation to the adequacy of the risk discussion, insupportable
as a matter of law. My first opinion is that Melanie was the
only person capable of giving informed consent to the surgical
procedure when it took place, or when she was first admitted to
hospital for the carrying out of that procedure. My second
opinion is that any legally proper risk discussion with a
person such as Melanie, with the capacity to give informed
consent, was required, in law, to include a statement of the
three alternative surgical methods of carrying out this third
coarctation repair operation with guidance about the risks and
advantages of each procedure. That risk discussion ought to
have included a statement that the by-pass machine alternative
provided "extra safety", but the failure to make that statement
is not necessary to the finding of liability that I have made.
I have applied my answers to those two legal questions to the
facts, either as found by the trial judge or as clearly
supported by the evidence where the relevant facts were not
considered by the trial judge, to reach my conclusion on
liability with respect to the second ground of claim, including
both liability for the paraplegia losses and for the laryngeal
nerve losses.
[138] Throughout my reasons I have endeavoured to remain
within the boundaries of the proper function of a court of
appeal judge as those boundaries have been carefully set by the
Supreme Court of Canada in a series of cases over the last
twenty years, as summarized in Part IV of these reasons.
XX
DISPOSITION
[139] I would allow this appeal, find liability on the part
of Dr. Ashmore on the basis I have described, and refer this
case back to the Supreme Court of British Columbia for an
assessment of damages.
"The Honourable Mr. Justice Lambert"
These reasons, and the concurring reasons of Madam Justice
Huddart, constitute, respectively, the written opinions on this
appeal of myself and Madam Justice Huddart. They were signed
and delivered to the registrar, in accordance with s-s.21(2) of
the Court of Appeal Act, on Thursday, 10 December, 1998.
"10 December 1998"
_________________
December 10, 1998 "The Honourable Mr. Justice Lambert"Reasons for Judgment of the Honourable Madam Justice Huddart:
[140] I agree with the reasons of Mr. Justice Lambert and with
his proposed disposition of this appeal. I am writing these
short concurring reasons only to explain my agreement in view
of my comments in Ney v. Canada (Attorney-General) (1993), 102
D.L.R. (4th) 136 about the potential existence of concurrent
rights to consent in parents and child. My concern in Ney
arose from the comments of Lord Donaldson M.R. in
Re: R., [1991] 4 All E.R. 177 (C.A.) at 185 to 186 about the
right of parents to consent to treatment in circumstances where
their competent child did not consent or was not asked.
[141] The view my colleague expressed succinctly at paragraph
[89] flows from the principle of law identified by Lord Scarman
in Gillick v. West Norfolk and Wisbech Area Health Authority,
[1986] A.C. 112 at 186:
The underlying principle of the law was exposed by
Blackstone (1 Bl Com (17th edn, 1830) chs 16 and 17)
and can be seen to have been acknowledged in the case
law. It is that parental right yields to the child's
right to make his own decisions when he reaches a
sufficient understanding and intelligence to be
capable of making up his own mind on the matter
requiring decision.
[142] Concurrent rights to consent were posited by Lord
Donaldson as necessary to resolve the doctor's "intolerable
dilemma" when facing parents who seek treatment the child
refuses.
[143] I do not consider Lord Donaldson's proposed judicial
modification of the common law to be necessary or desirable.
The dilemma is no different to that faced by doctors and all
others required to deal with mentally disabled adults, as Lord
Donaldson recognized at 186 in Re R. It requires not a legal
resolution but a factual decision. Is this person with whom I
am dealing capable of consenting to what I am proposing? In
both cases courts may override the refusal of treatment upon
appropriate application, just as a court may be called upon to
resolve a dispute between parents with concurrent rights to
give consent to treatment of a child who is not competent to
give consent to the treatment being proposed. In the case of a
person under 19 years of age in British Columbia, the ultimate
resort is to the parens patriae jurisdiction of the Supreme
Court.
[144] Unlike Lord Donaldson, I do not read section 16 of the
Infants Act, R.S.B.C. 1979, c. 196, (the equivalent as it was
in 1990 to section 8 of the Family Law Reform Act (1969) to
which he was referring at 186) as inconsistent with the common
law.
[145] I agree with Mr. Justice Lambert that section 16 did no
more than provide options to a medical practitioner who had
doubts about the capacity of an infant who had attained 16
years to consent to proposed treatment. An attempt to secure a
parent's consent or the obtaining of a second opinion would
protect the medical practitioner from an action for battery or
an assault charge. As Mr. Justice Lambert notes, there is
nothing in the section to substitute the consent of a parent
for the consent of a competent 16-year old. Nor is there
anything in the section to permit treatment when a competent
infant of any age refuses, or to permit a medical practitioner
to avoid facing the question by seeking only the consent of one
or both of the parents. I also agree that the 1979 Act is
simply not relevant to the issue of negligence as it relates to
consent.
"The Honourable Madam Justice Huddart"
Dissenting Reasons of the Honourable Mr. Justice Goldie
[146] I have had the privilege of seeing in draft my
colleagues' reasons for judgment in this tragic and difficult
case. As I am unable to concur in their disposition of this
appeal, I have found it necessary to explain why at some
length.
[147] Two grounds of negligence were alleged on the part of the
surgeon: firstly, negligence in the planning and performance
of the operation which took place 26 February 1990, and
secondly, negligence in the disclosure of risks of the
operation resulting in a lack of informed consent.
[148] It appears that Melanie Van Mol is in substance the
principal appellant and for this reason I refer to the
appellant in this Court in the singular. When I refer to the
parties in the court below I will refer to them collectively in
the plural.
[149] My reasons are arranged in the following manner:
I. INTRODUCTORY SUMMARY
II. THE FOUR OBSERVATIONS
1. The first observation
2. The second observation
3. The third observation
4. The fourth observation
III. THE SECOND ISSUE - INFORMED CONSENT
1. The mature minor and the 16 year-old
patient
a. Consent prior to Melanie's 16th
birthday
b. Consent after Melanie's 16th birthday
2. Alternative methods or surgical techniques
a. The Evidence at Trial
b. The Three Alternatives - A question of
law?
3. Informed Consent - Reibl v. Hughes
IV. LARYNGEAL NERVE DAMAGE
V. CONCLUSION
I. INTRODUCTORY SUMMARY
[150] As I understand the judgment of my colleague Mr. Justice
Lambert, he has found:
a. the findings of fact and law made by the trial judge
in reaching her conclusion that the conduct of the
surgeon fell within the acceptable standard of an
ordinary cardiac surgeon acting with prudence and
diligence are subject to four observations and two
conclusions;
b. that as the law stood in February, 1990 when the
operation was performed on her, Melanie (and I will
follow the practice of referring to Ms. Van Mol by
her given name) was the only person who could consent
to the operation; and
c. the trial judge's finding that the appropriate risk
discussions took place may be disregarded and the
surgeon found negligent in failing to have an
adequate risk discussion with Melanie.
[151] In both Parts XI and XIX of his reasons my colleague
disclaims any intention of substituting his opinion on the
first ground of claim for that of the trial judge. However,
and with respect, I am of the view my colleague has indeed
substantially substituted an appellate opinion for that of the
trial judge on the first ground of claim. As his observations
and conclusions influence his analysis of the second ground of
claim, I must start with them.
[152] As a preface to this examination I note that the contest
in respect of the first ground of alleged negligence was
between medical experts. No findings of credibility were
necessary. By way of contrast, it will be seen that the issue
raised in the second ground of alleged negligence could only be
resolved at trial by a finding of credibility.
[153] There had been extensive pre-trial discovery of the
principal medical defendants. The reports of the experts
retained by the parties had been exchanged. Five testified at
the trial as did three of the medical defendants. To discharge
her responsibility as the trier of fact the trial judge had the
assistance of these experts and of experienced counsel. It is
accepted Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby
Hospital, [1994] 1 S.C.R. 14 ("Toneguzzo") provides
authoritative direction to this Court where the findings to
which the trial judge has applied the law are questioned on
appeal.
[154] Two extracts at 121-2 in Toneguzzo are quoted in
paragraph [8] of Mr. Justice Lambert's judgment. For
convenience I set them out again here. The authorities omitted
in the first paragraph of his quotation are included as I think
the second quoted paragraph is better read in light of those
authorities:
It is by now well established that a Court of
Appeal must not interfere with a trial judge's
conclusions on matters of fact unless there is
palpable or overriding error. In principle, a Court
of Appeal will only intervene if the judge has made a
manifest error, has ignored conclusive or relevant
evidence, has misunderstood the evidence, or has
drawn erroneous conclusions from it: see P. (D.) v.
S. (C.), [1993] 4 S.C.R. 141, at pp. 188-89 (per
L'Heureux-DubĒ J.), and all cases cited therein, as
well as Geffen v. Goodman Estate, [1991] 2 S.C.R.
353, at pp. 388-89 (per Wilson J.), and Stein v. The
Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806-8
(per Ritchie J.). A Court of Appeal is clearly not
entitled to interfere merely because it takes a
different view of the evidence. The finding of facts
and the drawing of evidentiary conclusions from facts
is the province of the trial judge, not the Court of
Appeal.
...
I agree that the principle of non-intervention
of a Court of Appeal in a trial judge's findings of
facts does not apply with the same force to
inferences drawn from conflicting testimony of expert
witnesses where the credibility of these witnesses is
not in issue. This does not however change the fact
that the weight to be assigned to the various pieces
of evidence is under our trial system essentially the
province of the trier of fact, in this case the trial
judge.
[Emphasis added]
[155] From a chronological examination of the quoted
authorities it will be seen Toneguzzo is the culmination of a
series of pronouncements by the Supreme Court of Canada.
[156] Stein v. The Ship Kathy "K", supra, is known for the
phrase "palpable and overriding" error as descriptive of the
magnitude of the error required before appellate intervention
is allowed where credibility is involved in the findings of
fact. In Geffen v. Goodman Estate, supra, Madam Justice Wilson
characterized the approach of the Supreme Court to findings of
fact not contingent on credibility as "non-interventionist"
unless "a manifest error" had been made. In P.(D.) v. S.(C.),
supra, at 188-189 Madam Justice L'Heureux-DubĒ succinctly
summarized the scope of appellate intervention:
It is well-settled case law that a court of appeal
will only intervene in a trial judge's findings of
fact if the judge has made a manifest error, ignored
conclusive or relevant evidence, has misunderstood
the evidence or drawn erroneous conclusions from it.
She directed the reader to some ten judgments of the Court.
[157] These principles have been applied in virtually every
circumstance. Stein v. The Ship Kathy "K" was a maritime
collision case; Geffen involved the presumption of undue
influence, and in P.(D.) v. S.(C.) the issue was the right of
access to a minor child by a non-custodial parent.
II. THE FOUR OBSERVATIONS
1. The first observation
[158] The first of my colleague's four observations is found in
paragraph [65] of Part XI of his judgment. My colleague states
that while there is evidentiary support for the view that Dr.
Ashmore's plan was not contrary to all qualified medical
opinion in 1990, a "very extensive body of evidence" exists
that the operation should have been conducted with prophylactic
protection in place or immediately available, either in the
form of a bypass machine or a Gott shunt.
[159] In paragraph [33] he described Dr. Ashmore's plan as
contemplating cross-clamping without anything else. I think
the better description of the surgeon's plan is found in
paragraph [19] of my colleague's reasons where he describes the
purpose of a Gott shunt and notes the circumstance under which
the surgeon would have used it.
[160] As to its suitability for providing protection Dr.
LeBlanc, whose evidence on discovery was characterized by
counsel for the appellants as "forthright and fair", said at
trial:
Q Dr. LeBlanc, is Gott shunt a reasonable
alternative to use during a third repair of
coarctation in another surgeon's hands?
A Yes, it's totally an appropriate option for
bypass, doing a repair of a coarctation, meaning
to bypass the area where it's clamped. So a
Gott shunt is an appropriate option that has
been used. In fact, even before cardiopulmonary
bypass at the beginning of open heart surgery.
I have been trained to use cardiopulmonary
bypass because my training is just maybe 10, 12
years ago and at that time where I was, I didn't
see the use of Gott shunt. So I obviously feel
more comfortable myself with cardiopulmonary
bypass.
But in the hands of many experienced
surgeons, Gott shunt is extremely appropriate to
do this type of operation, with the same
protection, which means we're looking at
providing blood to the lower half of the body to
avoid the problem of paraplegia and bleeding.
[161] Whether the surgeon should have had available the
cardiopulmonary bypass machine instead of the Gott shunt was a
contested issue at the 35 day trial and in this Court.
[162] In paragraph [65], my colleague parenthetically alludes
to the appellant's contentions with respect to two expert
witnesses called by the respondents. These exactly illustrate
some of the considerations the trial judge had to take into
account. There is no indication she did not.
[163] As to his description of the evidence of a particular
point as "a very extensive body of evidence", I note the same
adjective was used by the trial judge to describe the totality
of all the evidence on the circumstances of Melanie's case. To
apply such a characterization to some evidence which she did
not accept infringes on the area of responsibility assigned to
her by Toneguzzo. It was for her to make a qualitative
analysis and in my view no fault was demonstrated in this Court
which supports a conclusion she was plainly wrong in her
assessment of the medical evidence. As Madam Justice McLachlin
said in Toneguzzo at 121:
The finding of facts and the drawing of evidentiary
conclusions from facts is the province of the trial
judge, not the Court of Appeal.
[164] I am unable to agree my colleague's first observation is
relevant. It discloses no manifest error on the part of the
trial judge nor any oversight, misunderstanding or error in the
conclusions she drew.
2. The second observation
[165] My colleague states in his paragraph [66] that the trial
judge seems to have misapplied the evidence with respect to the
risk of paraplegia. She is said to have drawn an incorrect
conclusion in applying a factor of .41% to the risk of
paraplegia in Melanie's case. Reference is made to paragraphs
121 and 131 of her judgment. Dr. LeBlanc's evidence is relied
upon as indicating an increase in risk to 3% to 4% in the case
of a third repair coarctation. My colleague's observation is
that his best view of the evidence is that the risk of
paraplegia in Melanie's case must have been 1% to 4%. At the
upper limit, this is an order of magnitude greater than that
quoted by the trial judge.
[166] In her paragraph 121, the trial judge was in the midst of
her analysis of the evidence on the second ground of alleged
liability - the adequacy of the risk disclosure. She refers to
the .41% statistic as support for her conclusion that the risk
of paraplegia must be disclosed.
[167] In her paragraph numbered 131, the trial judge did not
use this statistic - which reflects historical experience - in
her analysis of the risk of paraplegia. She was there applying
the modified objective test set out in Hopp v. Lepp, [1980] 2
S.C.R. 192 and Reibl v. Hughes, [1980] 1 S.C.R. 880 ("Reibl")
to which recourse is had in the event actual consent was
inadequate. (I will come to this in due course.) After
concluding that Dr. Ashmore had the appropriate risk discussion
with the Van Mols she stated:
If I am wrong in making that finding, I would
nevertheless find that if the risk was discussed, the
Van Mols would have consented to the surgery. It is
instructive to note that it is whether they would
have accepted the risk of paraplegia, not its
inevitability. The Van Mols are intelligent,
thoughtful people. They trusted the doctors. They
expected that the third surgery would go as well as
the other surgeries. Like the vast majority of
parents, they understand, in a visceral way, that
their children are hostages to fate. All that can be
done is to be as protective and vigilant as it is
reasonable to be. The risk of paraplegia was
statistically .41%. Dr. Ashmore had never had a
surgery resulting in paraplegia. Given the
complications faced by Melanie in the absence of the
surgery, it was a risk that a reasonable individual
would accept.
[168] If the statistical risk to Melanie at the hands of this
surgeon was derived from his experience alone, the result would
be zero. In the hands of the surgeons who made up larger
samples, the evidence disclosed a range.
[169] One of the experts, Dr. Trusler, said at page 5 of his
report:
There is a risk of paraplegia or spinal cord damage
with any coarctation operation. This risk is
generally about 0.4% (4 per 1000 operations) (Kirklin
and Barratt-Boyes, Brewer at al).
Incremental risk factors are the lack of development
of collateral circulation and a re-repair.
And at page 4 he said of recoarctation surgery:
The fact that it is a third operation would not
change these indications. There is a big difference
between the clean, pristine field of the first
operation and the obscure, adhesed field of the
second operation. Third and fourth and fifth
operations are not that much different than the
second and the indications and approaches do not
necessarily change. In general, each operation tends
to be a little more difficult than the one before,
but the difference is marginal. Occasionally I have
seen adhesions that were easier to cope with at the
third operation than at the second procedure. This
experience is based on a lot of reoperations over the
years.
[170] Dr. Trusler was cross-examined on a learned article in
which there appeared the sentence: "The risk is also increased
at re-repair." He agreed with this but quantified the increase
in the risk in the following words:
A Well, I've always thought that was correct,
although it was pointed out recently that the
risk is not -- the numbers are not that great in
recent years. It is something from .4 percent
to .6 percent. I would have thought it would
have been higher, but that reference is Lyman
Brewer's reference back in 1972 when he reviewed
those, how many cases, 10,000 cases?
Q 12,000.
A 12,000 cases that he found that the -- that re-
repair was an incremental risk factor for
paraplegia.
[171] Dr. Miyagishima, an expert called by the plaintiffs, said
in his testimony in chief the morbidity, or ratio of sick to
well, of paraplegia resulting from ischemia of the spinal cord
was, as stated in textbooks he did not identify, one-half of
one percent to one percent.
[172] Moreover, I am of the view the evidence of Dr. LeBlanc is
not supportive of the conclusion that the risk of the third
operation on Melanie was 3% or 4%. He testified at the trial:
Q Now, could I take you then back to your
examination for discovery that Mr. McAlpine read
to you, the second volume. He read to you
question 638, among others, and that question is
relative to the risks of paraplegia. Question
is -- he asked if "those risks were something
that were known to you before 1990?":
A Oh, yeah, they're the same risk in the
range of one to three per cent.
Now, where do you get the one to three
percent from?
A The risk of paraplegia in patients that have
arch problem varies from .4 to .5, in a patient
with coarctation and good supply, to 3 to 4
percent as the patient gets older or -- and has
had previous coarctation repair. So in a baby,
the risk is very minimal. On an older patient
with large collaterals the risk is minimal. On
a patient that has a second, a third, a fourth
operation the risk will increase slightly.
The reference to question 638 is explained in the sequence of
questions which culminated in that question:
634 Q Did you explain to the parents in the
course of this operation that there was a
risk of paraplegia?
A We always do.
635 Q You don't say we, I'll deal with you;
that's something you always raise in the
course of a recoarctation repair?
A Yes, it's something we always raise.
636 Q And when you say we, I just want to deal
with you for a second, you raise it, do you
use the word paraplegia, in other words,
bring it home in laymen's terms?
A I tell them it means the kid is paralyzed,
the legs don't move because they may not
understand like you say what paraplegia
means but they do understand what paralysis
means.
637 Q Yes. And why is that something you tell
the parents?
A Because it's a definite risk with the
devastating consequences that you're aware
of.
638 Q Yes. And those risks were something that
were known to you before 1990?
A Oh, yeah, they're the same risk in the
range of one to three percent.
[173] In the discovery evidence to which Dr. LeBlanc was
referred, he was speaking of a second operation on a child
which took place only eight months after the first and which
involved the arch of the aorta. Repair of the arch was not
required in Melanie's case.
[174] In the answer given by Dr. LeBlanc first referred to
above he continues to refer to arch repair. Other evidence of
which the trial judge was aware demonstrated the risk of
paraplegia was largely affected by the state of the patient's
collateral blood supply. It is to this Dr. LeBlanc referred in
the sentence "On an older patient with large collaterals the
risk is minimal". (At the B.C. Children's Hospital an "older
patient" is one 16 years or older.) The collateral blood
supply is the body's response to the high blood pressure
created by the constriction of the aorta.
[175] Dr. Penkoske, another surgeon qualified as an expert in
pediatric cardiac surgery, explained this relationship in these
words:
Q ... In Melanie's case, prior to her third
coarctation repair, what would you have
anticipated her collateral supply to be like?
A I would anticipate in a child who has a gradient
of 45 to 50 at rest on a cardiac catheterization
prior to a third operation, which was the
clinical status of Melanie's coarctation, that
she would have well developed collaterals. The
fact that a couple of collaterals were divided
at the time of the second operation, almost nine
years -- seven years previously, nine years
previously, I'm sorry, does not negate the fact
that she had nine years over which time a coarct
recurred and there was ample opportunity for
collateral vessels to redevelop.
Q Does the time play any role in the development
of collaterals?
A Definitely.
Q What role does the time play?
A If one has no time, for example, in the case of
acute aortic transection with an automobile
accident, there is no time for collateral
vessels to develop. Collateral vessels develop
when an obstruction is present for a period of
time, and the collateral vessels which are just
really enlargements of normal vessels has an
ample period of time to occur.
[176] For present purposes it is sufficient to note that the
presence and strength of the collateral blood vessels was
discussed by virtually every expert. The trial judge in
paragraph 93 of her reasons found Dr. Ashmore's plan provided
for the contingency of poorly developed collaterals. That
finding was not challenged.
[177] As there is no indication the trial judge measured the
risk actually confronting Melanie by such a yard stick, I am
unable to agree with my colleague's second observation. For
the reasons I have summarized above I am of the view it does
not disclose any error in the trial judge's finding that the
surgeon's conduct fell within the acceptable standard of an
ordinary cardiac surgeon acting with prudence and diligence.
3. The third observation
[178] My colleague's third observation is set out in paragraph
[67] of his reasons for judgment. However, as a preliminary
comment I wish to note here the appellant's third ground of
appeal expressed in these terms:
III. In the alternative, the trial judge erred in
failing to find that the standard medical practice to
which Dr. Ashmore conformed was itself negligent.
[179] As will be seen this alleges what has come to be referred
to as the ter Neuzen exception. I will endeavour to show this
provides a context overlooked in my colleague's suggestion
elsewhere in his judgment that the trial judge had difficulty
in reaching her conclusion on the first ground of negligence.
[180] In paragraph [58] of my colleague's reasons he refers to
the appellant's submission in this Court, made by way of an
overview,
... that the error said to have been made by the
trial judge must be assessed that she, herself, said
that an "exceedingly fine line" must necessarily be
drawn and the assessment of this first ground
required "long and anxious consideration". It was
argued that if the trial judge had not made the
particular specified errors in relation to the
evidence, then she may well have reached a conclusion
on the other side of the "exceedingly fine line".
[181] These words in quotation marks are taken from paragraph
111 of the trial judge's reasons for judgment. In paragraph
[45] my colleague says in part:
... I think it is fair to say that the words "an
exceedingly fine line" and the words "after long and
anxious consideration" must be taken to incorporate
into Madam Justice Kirkpatrick's reasons an
indication that the plaintiff must have come very
close to establishing her case on a balance of
probabilities, as she is required to do, but to have
fallen just short in Madam Justice Kirkpatrick's
opinion.
[182] I believe this is a contextually incorrect reading of
paragraph 111, and as it appears to have persuaded my colleague
to draw evidentiary conclusions at variance with the findings
in the court below, it becomes necessary to examine this at
some length.
[183] For convenience I reproduce at this point paragraphs 105,
108, 109, 110 and 111 of the trial judge's reasons:
105 Based upon all of the evidence, I conclude that
there was, in 1990, no one acceptable operative
procedure nor one accepted method of ensuring
protection of the spinal cord in the repair of a
third coarctation. Indeed, from the review of the
various expert opinions and the medical literature
discussed by the doctors at trial, it is evident that
there are several acceptable operative procedures and
acceptable approaches for the protection of the
spinal cord. Further, it is clear that Dr. Ashmore's
operative approach was one of several acceptable
approaches consistent with an established body of
medical opinion.
...
108 Counsel for the plaintiffs argue that Dr.
Ashmore's practice is one which is fraught with
risks so obvious and easily avoided that the court
ought to reject it as dangerous, unreasonable and
negligent. In order to do so, however, it would be
necessary to find that this case falls outside the
general rule (and within the exception) laid down in
ter Nuzen [sic] at p. 220:
...as a general rule, where a procedure involves
difficult or uncertain questions of medical
treatment or complex, scientific or highly
technical matters that are beyond the ordinary
experience and understanding of a judge or jury,
it will not be open to find a standard medical
practice negligent. On the other hand, as an
exception to the general rule, if a standard
practice fails to adopt obvious and reasonable
precautions which are readily apparent to the
ordinary finder of fact, then it is no excuse
for a practitioner to claim that he or she was
merely conforming to such a negligent common
practice.
109 Counsel for the plaintiffs contend that, once
the available options are explained for the court by
the medical experts, the issue of protection of
Melanie's spinal cord and whether she was exposed to
unreasonable risk, can be resolved without
specialized medical knowledge or experience. In my
opinion, this submission must fail. The
circumstances in Melanie's case giving rise to the
allegation of negligence are qualitatively different
from that posed in, for example, Anderson v. Chasney,
supra, in which sponges were not removed after
tonsillectomy surgery and the child suffocated. Nor
are they of the kind found in Stubbins v. Johnson,
supra, in which the court rejected the contention
that the defendant doctor's decision to proceed with
a second radial keratotomy surgery was an accepted
"school of thought." In Stubbins, the defendant,
within a matter of days after a first surgery which
resulted in an injured eye, proceeded with the second
surgery which resulted in the plaintiff being
rendered functionally blind.
110 Considering the very extensive and complex
medical evidence heard in this case, I conclude that
Melanie's condition involved difficult and uncertain
questions of medical treatment, as evidenced by the
conflicting schools of thought on the best approach
to repair a recoarctation and to ensure adequate
spinal cord perfusion. At a superficial level, and
with the clarity of hindsight, it may seem obvious
that cardiopulmonary bypass might have protected
Melanie's spinal cord and prevented her paraplegia.
But if one assesses the circumstances of Melanie's
extensive medical history, Dr. Ashmore's intimate
knowledge of her medical circumstances, the operative
site as it was known in January, 1979 and as it
presented in February 1990, the risks and benefits of
the various approaches, and Dr. Ashmore's skill and
knowledge as a surgeon, the decision to employ spinal
protection prophylactically is not, as required by
ter Nuzen, "obvious nor readily apparent."
Furthermore, I am unable to conclude that "the
obvious and reasonable precautions" were themselves
without risks, or that, if employed, they would have
necessarily prevented Melanie's paraplegia.
111 Based on all of the evidence, it is clear that
the decisions made in Melanie's case involved the
assessment and weighing of a multitude of complex
factors, both prior to the surgery and intra-
operatively. Dr. Ashmore brought to that unenviable
task enormous skill and experience. In hindsight, he
was tragically mistaken in his choice of approach.
Dr. Ashmore's surgical plan did not take into account
a rare and exceptional occurrence - the tear in the
aorta at the time of cross clamping. Notwithstanding
the application of diligence, care, knowledge, skill
and caution, Melanie has suffered the tragic results
of Dr. Ashmore's inability to foresee what occurred.
But the law does not impose a standard of perfection
upon doctors. They cannot be expected to be the
predictors of the rare and exceptional occurrence.
This, of course, provides no comfort or solace to
Melanie who must live with the consequences of the
strictures of an imperfect standard. It is an
exceedingly fine line which must necessarily be
drawn. However, after long and anxious
consideration, I conclude that Dr. Ashmore's conduct
fell within the acceptable standard of an ordinary
cardiac surgeon acting with prudence and diligence.
[Emphasis added]
[184] It does not appear that paragraphs 108 and 109 of the
trial judgment which were omitted from those quoted by my
colleague in his paragraph [45], formed part of his analysis.
In my view, it is apparent from paragraphs 108 and 109 the
trial judge is responding to the plaintiffs' submission that
Dr. Ashmore's adherence to a standard medical practice was in
itself negligence as falling within the exception to standard
medical practice reviewed in Kobe ter Neuzen v. Dr. Gerald Korn
(1993), 81 B.C.L.R. (2d) 39 (B.C.C.A.), decided in this Court
in November, 1993. (I will refer to this case as "ter
Neuzen".) The claim in negligence against Dr. Korn, practising
as an obstetrician and gynaecologist, was made because the
plaintiff became infected with the HIV virus during the course
of artificial insemination procedures administered by him. A
jury found liability. The trial judge had instructed the
jurors that it was open to them, as the triers of fact, to find
the custom or general practice negligent.
[185] The direction thus stated was not approved by this Court.
A new trial was ordered as there were several bases for
liability and which one of these the jury had chosen could not
be ascertained.
[186] An appeal was taken by the plaintiff to the Supreme Court
of Canada. It was dismissed: [1995] 3 S.C.R. 674, 11 B.C.L.R.
(3d) 201. (I will refer to the latter report as it was that
used by the trial judge in her reasons.)
[187] Mr. Justice Sopinka, speaking for himself and five other
members of the seven judge panel, examined the role of the
trier of fact both where the defendant doctor relies upon an
adherence to standard practice and where it is alleged such
adherence is itself evidence of negligence. As to the first
Sopinka J. said in part at 214 and 216:
33 It is well settled that physicians have a duty
to conduct their practice in accordance with the
conduct of a prudent and diligent doctor in the same
circumstances. In the case of a specialist, such as
a gynaecologist and obstetrician, the doctor's
behaviour must be assessed in light of the conduct of
other ordinary specialists, who possess a reasonable
level of knowledge, competence and skill expected of
professionals in Canada, in that field. A
specialist, such as the respondent, who holds himself
out as possessing a special degree of skill and
knowledge, must exercise the degree of skill of an
average specialist in his field: see Wilson v.
Swanson, [1956] S.C.R. 804 at 817, Lapointe c.
Hģpital Le Gardeur, [1992] 1 S.C.R. 351 at 361, and
McCormick v. Marcotte (1971), [1972] S.C.R. 18.
...
38 It is generally accepted that when a doctor acts
in accordance with a recognized and respectable
practice of the profession, he or she will not be
found to be negligent. This is because courts do not
ordinarily have the expertise to tell professionals
that they are not behaving appropriately in their
field. In a sense, the medical profession as a whole
is assumed to have adopted procedures which are in
the best interests of patients and are not inherently
negligent....
[188] And at 220, after considering Anderson v. Chasney, [1949]
2 W.W.R. 337 (Man.C.A.), aff'd [1950] 4 D.L.R. 223 (S.C.C.), he
said:
51 I conclude from the foregoing that, as a general
rule, where a procedure involves difficult or
uncertain questions of medical treatment or complex,
scientific or highly technical matters that are
beyond the ordinary experience and understanding of a
judge or jury, it will not be open to find a standard
medical practice negligent. On the other hand, as an
exception to the general rule, if a standard practice
fails to adopt obvious and reasonable precautions
which are readily apparent to the ordinary finder of
fact, then it is no excuse for a practitioner to
claim that he or she was merely conforming to such a
negligent common practice.
[189] Returning to the case at bar, I think it is clear from
paragraphs 110 and 111 of her judgment the trial judge was
considering the plaintiffs' contention that Dr. Ashmore's
conduct fell within the above exception to the general rule.
[190] In my view the trial judge, "after long and anxious
consideration", decided Dr. Ashmore's planning and conduct of
the operation did not come within the ter Neuzen exception to
the general rule. From that it followed the standard by which
he was to be judged was that of an ordinary cardiac surgeon
acting with prudence and diligence. This is what she said in
paragraph 133 of her reasons:
133 I conclude that the conduct of Dr. Ashmore and
Dr. Patterson falls within the standard of,
respectively, an ordinary cardiac surgeon and an
ordinary cardiologist, acting with prudence and
diligence.
[191] The trial judge's finding on the ter Neuzen point is not
directly challenged in this Court. It is indirectly challenged
in the sense I earlier mentioned: that the statements made by
the trial judge in paragraph 111 of her reasons are said to
indicate she had difficulty with her ultimate decision on the
first ground of appeal. In light of the context I have
outlined, I do not agree. It was not suggested in this Court
the trial judge erred in her understanding of ter Neuzen.
There was evidence which I will come to supporting her
characterization of the tear in the aorta as "rare and
exceptional".
[192] I return now to the text of my colleague's third
observation in his paragraph [67]. There it is stated that
risks of paraplegia, death and other overall risks are
significantly reduced where prophylactic protection in the form
of the bypass machine or a Gott shunt is employed where dense
adhesions and friable aorta "ought" to be anticipated. He
refers to the preference of three experts called by the
appellants for the bypass machine and, as most noteworthy of
all, the evidence of Dr. Trusler to the effect of the pump
providing "that extra safety".
[193] The trial judge was fully cognizant of what the expert
surgeons were saying. I have extracted the gist of her
comments from the following paragraphs of her judgment:
Paragraph
90 - All expert evidence and literature confirm that the
true extent of scarring and adhesions cannot be
predicted and can only be determined during the
operation. Their presence in Melanie's case should
be anticipated as should the possibility that the
aorta would be friable.
91 - It is essential to consider and plan for the
possibility Melanie's collaterals would be
insufficient to perfuse her spinal cord during an
extended period of cross-clamping.
92 - The various factors to be considered in the repair of
a recurrent recoarctation were summarized in an
article adopted by the plaintiffs' experts.
93 - Dr. Ashmore did not ignore the risk factors of
unpredictable extent of scar tissue and adhesions and
the sufficiency or otherwise of Melanie's collaterals
and planned for these.
94-100 - The evidence of the five surgeons who testified was
canvassed by the trial judge who quoted Dr. Trusler's
testimony under cross-examination as follows:
Q Sorry. Dr. Ashmore's evidence is that he would
wait until cross-clamping to determine whether
to apply a protective mechanism, whether by way
of Gott shunt or cardiopulmonary bypass. Is
that your understanding?
A Yes.
Q It's just a simple question. You have
described, in the paragraph that you have read
two or three times, the major danger of
dissecting up to cross-clamping; is that fair?
A Yes.
Q And I'm respectfully suggesting to you that this
decision to wait to cross-clamp leaves the
patient unprotected during this period of major
danger. That's all. Is that true?
A It's true, and that's the way we do it.
Q Well, let's talk about that. It's the way you
do it, and your colleagues do it at the Toronto
Sick Children's Hospital. Is that what you're
saying?
A Yes, and the way Stark and Pacifico do it and
the way Castaneda does it.
[194] The evidence of Dr. Trusler my colleague considers
significant was given in his historical review of paediatric
coarctation surgery with particular reference to the training
cardiac surgeons receive.
[195] When the portion in question of his evidence is examined
in the context of the long answer in which it occurs and the
cross-examination to which the evidence extracted refers, it is
clear that the experience gained in the surgical treatment in
adult cardiac patients for which the heart pump machine is
indicated does not translate in identical terms to the cardiac
treatment of pediatric patients. The "extra safety" relates
more to the subjective confidence of a surgeon trained in the
adult cardiac field. Dr. Trusler's opinion was that nothing in
Melanie's case indicated a need for the prophylactic
application of either a heart pump machine or the Gott shunt.
[196] Dr. Trusler was of the view the prophylactic use of the
Gott shunt was indicated only where there were "very dense
adhesions" and the time Dr. Ashmore took to deal with these in
Melanie's case indicated to Dr. Trusler that her adhesions did
not fall into such a category.
[197] The trial judge summarized the plaintiffs' contentions in
paragraph 75 of her reasons:
The plaintiffs contend that the circumstances of
Melanie's case were:
(1) elective surgery on an otherwise
asymptomatic 16 year old girl;
(2) a third coarctation repair by the same
surgeon who performed the previous two
repairs;
(3) the events of the second surgery to repair
provided Dr. Ashmore with insight into the
conditions he would face on the third
repair;
(4) the surgeon had reason to anticipate in the
planning phase the risks that occurred
during the surgery; and
(5) during the early stages of the operation,
the opportunity existed for the surgeon to
reassess his approach and surgical
technique.
[198] She dealt with the evidence in respect of each of these
matters and, over the next seven pages of her judgment, came to
conclusions and findings. She then considered the standard of
care applicable in these circumstances. In the nine pages of
her judgment that followed she concluded the risk factors were
not ignored. In paragraph 93 to which I have referred she made
a finding not challenged in this Court.
Notwithstanding the unpredictability of the
extent and density of scar tissue and adhesions, and
the sufficiency of Melanie's collateral circulation,
as well as the possible friability of the aorta, it
is plain from Dr. Ashmore's evidence that those risk
factors were not ignored. Indeed, they were planned
for, as evidenced by his intention to use a Gott
shunt if the collateral circulation proved to be
inadequate.
[199] The evidence established a number of operative
techniques. As this is the subject of the principal ground of
the majority judgment in the case at bar I will defer further
comment on operative or surgical techniques until I came to the
issue of informed consent.
[200] I have referred to the trial judge's reasons in some
detail. I have done so in order to determine whether she
misapprehended, misunderstood or overlooked evidence which
would demonstrate within Toneguzzo and the associated
authorities that she was plainly wrong in her judgment on the
first ground of appeal. In my view, no such demonstration has
been made out. In the result I am of the opinion my
colleague's third observation is an indirect substitution of an
appellate opinion for which no warrant in law exists.
4. The fourth observation
[201] My colleague's fourth observation is set out in paragraph
[68] of his reasons. He there suggests the trial judge erred
in referring to guarantees rather than reduction of risks.
Reference was made to paragraphs 96 and 110 of her reasons.
[202] I am unable to agree. In paragraph 96 she says of Dr.
Gillis's evidence that he conceded the use of the safety
measures did not guarantee avoidance of paraplegia. This,
again in context, means no more than there were risks inherent
in all prophylactic measures.
[203] It was for the trial judge to determine what these were
and their relative significance.
[204] That assessment is contained in paragraph 110 where she
says:
Furthermore, I am unable to conclude that "the
obvious and reasonable precautions" were themselves
without risks, or that, if employed, they would have
necessarily prevented Melanie's paraplegia.
[205] The words she placed in quotation marks are from Mr.
Justice Sopinka's judgment in ter Neuzen at 220. The last
clause echoes Coyne J.A. in Anderson v. Chasney, supra, where
he said if "... a simple precaution, plainly capable of
obviating danger which sometimes results in death was well
known ...", the practitioner could not exonerate himself by
showing others also neglected to take it. At 219-220 of ter
Neuzen Sopinka J. quoted this with approval. There was
evidence which supported the concluding finding stated in the
above extract from paragraph 110 of Madam Justice Kirkpatrick's
reasons.
[206] With the greatest respect to my colleague, I am of the
view no basis has been established that supports appellate
modification of the trial judge's dismissal of the first ground
of appeal - negligence in the planning and conduct of the
operation. In this circumstance I fear these observations are
an impediment to the only issue properly before this Court:
namely, informed consent. I am not overlooking the conclusion
stated by my colleague in paragraph [69] of his reasons for
judgment, and I will come to that in considering the
substantive basis for his conclusion that the surgeon is liable
in negligence on the consent issue.
III. THE SECOND ISSUE - INFORMED CONSENT
1. The mature minor and the 16 year-old patient
[207] An important question must be answered before determining
if the operation in February, 1990 was performed with informed
consent; that is: "who could have consented to the operation?"
[208] My colleagues have concluded that only Melanie could give
such consent and that the role of her parents was that of
advisors. In one sense, this is hypothetical as there is no
evidence that Melanie and her parents differed in their actual
consent. However, if my colleagues are correct the trial judge
was precluded from taking into consideration, as she did, the
role of the parents based on the relationship with Drs. Ashmore
and Patterson that had existed since shortly after Melanie's
birth.
[209] For this threshold question, I turn first to Part XII of
Mr. Justice Lambert's judgment.
[210] I understand he finds:
a. At common law the consent of Melanie before she
reached the age of 16 was effective as she had "...
sufficient maturity, intelligence and capability of
understanding" to make informed choices about the
proposed medical treatment.
b. The consent of Melanie after she reached the age of
16 was effective by virtue of An Act to Amend the
Infants Act, S.B.C. 1973, c. 43 which was in force
when the operation was performed. (I will refer to
this as the 1979 Act as at the time of the 1979
consolidation a change in numbering took place. In
1993 it was repealed and successor legislation took
its place. Thereafter the looseleaf edition of the
consolidated Infants Act contained the new s. 16.).
c. In both circumstances, and I quote here from
paragraph [75] of my colleague's reasons:
All rights in relation to giving or withholding
consent will then be held entirely by the child.
The role of the parent or guardian is as advisor
and friend. There is no room for conflicting
decisions between a young person who has
achieved consenting capacity, on the one hand,
and a parent or guardian, on the other.
[211] I am unable to agree the finding I have quoted states a
result conforming to either the common law as it was in 1990 or
to the statute law of the province then represented by the 1979
Act.
[212] It appears the plaintiffs sought to set aside the actual
consent of Melanie and her parents when they alleged, amongst
other particulars in the amended statement of claim, failure on
the part of the surgeon ".... to advise the Plaintiffs of other
less risky options available for the management of Melanie's
medical condition". No issue arose in the trial court or in
this Court over a possible exclusion of the consent of two of
these plaintiffs until counsel provided us with written
submissions in response to the questions posed by the Court at
the end of argument. See paragraph [72] of Mr. Justice
Lambert's reasons. It was only in the appellant's answer to
the Court's second question that it was asserted for the first
time that Melanie's consent alone was necessary and that of her
parents was not. The respondent's answer to the second
question asserted the finding of the trial judge on consent
covered both Melanie and her parents.
[213] I turn to the situation at common law as it applied to
Melanie and her parents prior to her 16th birthday in November,
1989.
a. Consent prior to Melanie's 16th birthday
[214] Who is to decide whether a 15 year old patient possesses
"sufficient maturity, intelligence, and capability of
understanding ..."? This is a question of fact. I think it is
answered in Gillick v. West Norfolk and Wisbech Area Health
Authority, [1986] 1 A.C. 112 (H.L.) ("Gillick"). The issue in
that case was whether the mother of teenaged daughters had the
absolute right as a parent to be informed of and to veto
medical advice or treatment of a contraceptive nature which
need not be disclosed to the parents on the authority of a
"Memorandum of Guidance" issued to the treating health
authorities by a government department.
[215] It would appear the answer to the question is: the
minor's medical advisor. Lord Fraser of Tullybelton had this
to say in his speech at 174:
There may well be other cases where the doctor
feels that because the girl is under the influence of
her sexual partner or for some other reason there is
no realistic prospect of her abstaining from
intercourse. If that is right it points strongly to
the desirability of the doctor being entitled in some
cases, in the girl's best interest, to give her
contraceptive advice and treatment if necessary
without the consent or even the knowledge of her
parents. The only practicable course is to entrust
the doctor with a discretion to act in accordance
with his view of what is best in the interests of the
girl who is his patient. He should, of course,
always seek to persuade her to tell her parents that
she is seeking contraceptive advice, and the nature
of the advice that she receives. At least he should
seek to persuade her to agree to the doctor's
informing the parents. But there may well be cases,
and I think there will be some cases, where the girl
refuses either to tell the parents herself or to
permit the doctor to do so and in such cases, the
doctor will, in my opinion, be justified in
proceeding without the parents' consent or even
knowledge provided he is satisfied on the following
matters: (1) that the girl (although under 16 years
of age) will understand his advice; (2) that he
cannot persuade her to inform her parents or to allow
him to inform the parents that she is seeking
contraceptive advice; (3) that she is very likely to
begin or to continue having sexual intercourse with
or without contraceptive treatment; (4) that unless
she receives contraceptive advice or treatment her
physical or mental health or both are likely to
suffer; (5) that her best interests require him to
give her contraceptive advice, treatment or both
without the parental consent.
That result ought not to be regarded as a
licence for doctors to disregard the wishes of
parents on this matter whenever they find it
convenient to do so. Any doctor who behaves in such
a way would be failing to discharge his professional
responsibilities, and I would expect him to be
disciplined by his own professional body accordingly.
[Emphasis added]
[216] At 188 Lord Scarman came to the same conclusion:
In the light of the foregoing I would hold that
as a matter of law the parental right to determine
whether or not their minor child below the age of 16
will have medical treatment terminates if and when
the child achieves a sufficient understanding and
intelligence to enable him or her to understand fully
what is proposed. It will be a question of fact
whether a child seeking advice has sufficient
understanding of what is involved to give a consent
valid in law. Until the child achieves the capacity
to consent, the parental right to make the decision
continues save only in exceptional circumstances.
Emergency, parental neglect, abandonment of the
child, or inability to find the parent are examples
of exceptional situations justifying the doctor
proceeding to treat the child without parental
knowledge and consent: but there will arise, no
doubt, other exceptional situations in which it will
be reasonable for the doctor to proceed without the
parent's consent.
...
It follows that a doctor will have to satisfy himself
that she is able to appraise these factors before he
can safely proceed upon the basis that she has at law
capacity to consent to contraceptive treatment. And
it further follows that ordinarily the proper course
will be for him, as the guidance lays down, first to
seek to persuade the girl to bring her parents into
consultation, and if she refuses, not to prescribe
contraceptive treatment unless he is satisfied that
her circumstances are such that he ought to proceed
without parental knowledge and consent.
[Emphasis added]
[217] In her review of the common law Madam Justice Huddart,
then sitting in the Supreme Court of British Columbia,
summarized her conclusion in Ney v. Canada (1993), 102 D.L.R.
(4th) 136 (B.C.S.C.) in these words at 147:
In summary, at common law a child is capable of
consenting to medical treatment if he or she has
sufficient intelligence and maturity to fully
appreciate the nature and consequences of a medical
procedure to be performed for his or her benefit. It
appears that the medical practitioner is to make this
determination. If the child is incapable of meeting
this test then the parents' consent will be required
for treatment. It is not clear whether parental
control yields to the child'[sic] independence or
whether there are concurrent powers of consent. But
it is clear that the parents may not veto treatment
to which a capable child consents, and that neither
child nor parents can require a medical practitioner
to treat. Apart from s. 16, this rule is modified
only to the extent that the decision of a child or
parents may be overridden under the provisions of the
Family and Child Service Act, S.B.C. 1980, c. 11, or
by the court acting under its parens patriae
jurisdiction.
[Emphasis added]
[218] At issue before her was the validity of the legislation
which replaced the 1979 Act.
[219] For present purposes I would agree with my colleague's
description of Melanie. I do not doubt she was mature,
intelligent, interested in her health, and capable of
understanding what affected her health when she was admitted to
the B.C. Children's Hospital in 1989 for the third operation.
Such an assessment is obviously a question of fact and I all
the more accept my colleague's evaluation of Melanie as
relevant because I think it coincides with how Dr. Ashmore and
her medical team saw her.
[220] It will be seen from what I have quoted from Gillick that
with the authority to decide whether a minor of the age of 15
is sufficiently mature goes a professional responsibility to
act in the child's best interests. Under Gillick this includes
consulting with and obtaining the parents' consent in all but
clearly defined circumstances, such as abandonment,
unavailability, emergency. Such circumstances are absent here.
Lord Fraser regarded a failure to disregard the wishes of the
parents in the absence of such circumstances as professional
misconduct.
[221] In my view the common law in this province in 1989,
assuming for the moment it was not codified by the 1979 Act,
required an evaluation by the medical advisors who would be
professionally bound to consult the parents and to respect
their wishes unless some very good reason existed. That, I
think, is the effect of Gillick.
[222] Drs. Patterson and Ashmore, as prudent and reasonable
practitioners, would consult the parents and Melanie and,
unless there was circumstance of the kind envisioned by Lords
Fraser and Scarman, would be unlikely to proceed in the absence
of the consent of all three. The trial judge looked at the
whole course of the relationship between the Van Mol family and
their medical advisors in order to decide whether there was
adequate risk disclosure to support the actual consent of
Melanie and her parents. In my view, she was correct in doing
so.
[223] The case of Walker v. Region 2 Hospital Corp. (1994), 116
D.L.R. (4th) 477 (N.B.C.A.) was referred to by my colleague.
In that unusual case the 15 year old patient stipulated in his
consent an objection to the use of transfused blood products.
His medical advisors agreed he was mature and aware of the
possibly fatal consequences. They proposed a course of
treatment that would not involve transfused blood products.
The 15 year old consented to this as did his parents who shared
his beliefs. Nevertheless, the hospital and the principal
specialist felt it desirable to apply under the "Medical
Consent of Minors Act" of New Brunswick, which the Chief
Justice of New Brunswick said at 487 codified the common law.
The order sought was
a. that the minor be declared mature, capable of
consenting to blood transfusions and dispensing with
the consent of the parents;
b. alternatively, that the applicants be allowed to not
administer transfused blood products to the minor
unless he consents in which event the applicants
desire an order allowing them to administer blood if
necessary, notwithstanding the wishes of the parents.
[224] The judge to whom the application was made declared, in
the exercise of the court's parens patriae jurisdiction, the
patient a ward of the court. On appeal this order was set
aside. The Chief Justice of New Brunswick, speaking for the
majority, concluded the application was unnecessary as the
findings of the physicians and the consent of the parents
confirmed his maturity. It is apparent the purpose of the
order sought was to avoid the need to obtain the parents'
consent if the minor decided in the future, notwithstanding his
present beliefs, to accept transfused blood products.
[225] It will be seen, however, no actual issue arose as
between parents and child, and in my view, the relevance of
this case is principally in respect of the interpretation of
the 1979 Act.
b. Consent after Melanie's 16th birthday
[226] This brings me to the statutory regime in place at the
time Melanie attained the age of 16, some three months prior to
the operation in February, 1990. The 1979 Act which, as I have
said, was enacted in 1973, differed significantly from the
English legislation discussed in Gillick.
[227] As a matter of convenience I set out the two pieces of
legislation:
The 1979 Act
PART 2
Consent of infant to medical
treatment
16.(1) Subject to subsection
(4), the consent of an infant
who has attained 16 years of
age to surgical, medical,
mental or dental treatment
which, in the absence of
consent, would constitute a
trespass to his person, shall
be as effective as it would be
if he were of full age.
(2) Where an infant has, by
virtue of this section, given
his consent to any treatment it
is not necessary to obtain a
consent from his parent or
guardian.
(3) In this section "surgical,
medical or mental treatment"
means any procedure undertaken
by a medical practitioner, and
"dental treatment" means any
procedure undertaken by a
dentist who is a member of the
College of Dental Surgeons of
British Columbia, for the
purpose of diagnosis or
treatment, including in
particular the administration
of an anaesthetic, or any other
procedure ancillary to the
diagnosis or treatment.
(4) Nothing in this section
makes a consent effective
unless
(a) a reasonable effort has
first been made by the medical
practitioner or the dentist to
obtain the consent of the
parent or guardian of the
infant; or
(b) a written opinion from one
other medical practitioner or
dentist is obtained confirming
that the surgical, medical,
mental or dental treatment and
the procedure to be undertaken
is in the best interest of the
continued health and well being
of the infant.
(5) This section does not make
ineffective a consent which
would have been effective if
the section had not been
enacted.
(6) A medical practitioner or
dentist who treats an infant
under subsections (1) and (2)
without consent from his parent
or guardian may provide the
parent or guardian of the
infant with the information the
person treating the infant
considers advisable.
[Emphasis added] S. 8 of the
Family Law Reform Act of 1969,
U.K. Stat. 1969, c. 46
8.-(1) The consent of a minor
who has attained the age of
sixteen years to any surgical,
medical or dental treatment
which, in the absence of
consent, would constitute a
trespass to his person, shall
be as effective as it would be
if he were of full age; and
where a minor has by virtue of
this section given an effective
consent to any treatment it
shall not be necessary to
obtain any consent for it from
his parent or guardian.
(2) In this section "surgical,
medical or dental treatment"
includes any procedure
undertaken for the purposes of
diagnosis, and this section
applies to any procedure
(including, in particular, the
administration of an
anaesthetic) which is ancillary
to any treatment as it applies
to that treatment.
(3) Nothing in this section
shall be construed as making
ineffective any consent which
would have been effective if
this section had not been
enacted.
[228] It will be seen that s-ss. (4) and (6) of the 1979 Act
are without counterpart in the English legislation. The
consent of the 16 year old infant is made wholly subject to s-
s. (4) which requires the treating physician to proceed under
paragraphs (a) or (b) before he or she may treat the consent of
the 16 year old as valid. In the event of a dispute, it would
be for a court of law to determine whether the efforts made
under (a) were reasonable and whether an opinion obtained under
(b) conformed to the statutory requirements set out in that
paragraph.
[229] In Gillick Lord Scarman said at 182 of the English
legislation:
I cannot accept the submission made on Mrs. Gillick's
behalf that subsection (1) necessarily implies that
prior to its enactment the consent of a minor to
medical treatment could not be effective in law.
Subsection (3) leaves open the question whether the
consent of a minor under 16 could be an effective
consent. Like my noble and learned friend, Lord
Fraser of Tullybelton, I read the section as
clarifying the law without conveying any indication
as to what the law was before it was enacted. So far
as minors under 16 are concerned, the law today is as
it was before the enactment of the section.
[Emphasis added]
[230] Unlike the English act, the 1979 Act appears to have been
intended to change the law. It is similar in its requirements
to the New Brunswick legislation referred to in Walker v.
Region 2 Hospital Corp., supra.
[231] However it is viewed, the 1979 Act was in force when the
third operation was performed. Under it the treating surgeon
was required to take one or both of the steps specified in
paragraphs (a) and (b) of s-s. (4) if, in the absence of an
emergency or a court order he or she intended to rely solely on
the consent of a minor child who had attained the age of 16.
In view of the lack of finality in these two courses, a prudent
surgeon would take advantage of s-s. (5) and obtain the
matching consent of the parents rather than risk a challenge to
the adequacy of anything done in purported compliance with
paragraphs (a) or (b) of s-s. (4). Conceptionally, this is
what was done in the case at bar.
2. Alternative methods or surgical techniques
[232] I turn now to the substantive basis advanced for setting
aside the trial judge's finding that the required consents were
given.
[233] These are set out in Mr. Justice Lambert's reasons in
paragraph [69] of Part XI - Conduct of the Operation, and in
paragraph [95] of Part XIV - Informed Consent: Surgical
Alternatives.
[234] What is stated in paragraph [69] are two conclusions
derived from my colleague's observations to which I have
already referred. These conclusions are said to be necessary
to the process of reasoning on the second head of claim.
[235] The first conclusion is that there are three principal
alternative methods of carrying out the operation performed in
February, 1990: one, the method adopted by the surgeon which
does not use any prophylactic protection but has the Gott shunt
available if the collateral flow is insufficient; two, to use
the Gott shunt prophylactically before cross-clamping; and,
three, to use the cardiopulmonary bypass machine, either hooked
up or on standby.
[236] In fact, the surgical procedures or alternative methods
of carrying out the operation are not limited to the three
mentioned. Nor do these three exhaust the surgical options
available to a surgeon in a third recoarctation operation when
repairs are needed. What is in issue here are those available
to the surgeon "from skin to aorta" and it is only to these
that I will now refer as my colleague does not suggest the
alternative repair techniques are matters the surgeon must
discuss with the patient in order to obtain an informed
consent.
[237] It is further asserted in paragraph [69] as a conclusion
that for each of these three alternatives the risks are
describable and, in some respects assessable, and that these
should be discussed with the patient with consenting capacity.
Moreover, it is said there is nothing in this conclusion
contrary to the trial judge's reasons as this conclusion was
unnecessary to her finding on the first ground of claim.
[238] In the concluding sentence in paragraph [95] of Part XIV
my colleague states:
But the essential question is whether the three
principal surgical alternatives should have been
discussed with the person capable of giving informed
consent.
I would answer this question in the negative.
[239] I will first refer briefly to the evidence at the trial
to determine whether the trial judge misunderstood,
misapprehended or overlooked the evidence which could affect
her findings expressed in the following passages in her
judgment:
104 The various views expressed by all the surgeons,
and which is reflected in the medical literature,
make it plain that the decision is not simply one of
shunt or no shunt; or patch aortaplasty, or jump
graft, or interpositional graft. The evidence is
clear that every option available to the surgeon (be
it an operative approach or a mechanism for spinal
cord protection) carries with it positive and
negative features. The mere fact that so many
procedures are available and are considered
appropriate in the repair of recoarctations is
perhaps the best proof that there is no one accepted
school of medical thought as to the best operative
approach.
105 Based upon all of the evidence, I conclude that
there was, in 1990, no one acceptable operative
procedure nor one accepted method of ensuring
protection of the spinal cord in the repair of a
third coarctation. Indeed, from the review of the
various expert options and the medical literature
discussed by the doctors at trial, it is evident that
there are several acceptable operative procedures and
acceptable approaches for the protection of the
spinal cord. Further, it is clear that Dr. Ashmore's
operative approach was one of several acceptable
approaches consistent with an established body of
medical opinion.
[240] I will then consider whether the authorities binding on
this Court requires the question of surgical techniques to be
disclosed to the extent stated by my colleague.
a. The Evidence at Trial
[241] The evidence disclosed at least four alternative surgical
techniques with variants and combinations which were canvassed
at length with the seven cardiovascular surgeons who testified.
Those called by the plaintiffs supported the use of the heart
pump or other techniques such as a jump graft, a technique
which avoided dissection in an area of dense adhesions. The
defendant surgeon and the two surgeons called on behalf of the
defendants supported the surgical plan adopted by Dr. Ashmore.
Dr. LeBlanc preferred the heart pump but he characterized the
Gott shunt as appropriate. The narrow point was whether the
surgeon was negligent in his failure to use the Gott shunt
prophylactically.
[242] I quote from paragraph 2 of Dr. Miyagishima's report on
page 3, confirmed in his testimony at trial:
2. And when it is determined, through a left
thoracotomy and with minimal dissection, that
the adhesions are severe and the aorta appears
friable, then one would insert a bypass device,
either in arterial - arterial shunt (Gott
shunt), or cardiopulmonary bypass before any
extensive dissection is undertaken.
The points that are common to the operation performed by Dr.
Ashmore are: the approach (left thoracotomy); the appraisal of
the adhesions and the degree of friability of the aorta after
it is exposed to visual examination; and finally, the
interchangeability of the Gott shunt and the heart pump as
anticipatory support.
[243] The difference between what he describes and what Dr.
Ashmore planned was this: the latter intended to determine the
adequacy of the collateral blood vessels to provide blood to
the spinal cord after he had exposed the aorta sufficiently to
clamp it. If there was doubt after measuring the blood
pressures the Gott shunt would be inserted. This would
necessitate further dissection.
[:\C Dr. Ashmore's proposed use of the Gott shunt instead of
the heart pump reflected his assessment of the risks of the
latter. His decision to measure the adequacy of the
collaterals before deciding on the use of the Gott shunt
reflected a variety of factors.
[245] Dr. Ashmore was on the stand for the better part of five
days. He was cross-examined on every technique open to a
surgeon who undertakes the repair of the aorta. It would be
tedious to review his evidence in detail. I will refer only to
the reason he gave for not using the heart pump in Melanie's
case.
[246] The use of the heart pump requires the administration of
the drug heparin as an anticoagulant to obviate the risk of
blood clots. Dr. Ashmore, who had used the heart pump and was
familiar with its operation, concluded that in his judgment the
risk of greater bleeding as a result of anti-coagulation was
not one he accepted. In response to a series of questions
arising out of his discovery evidence related to Melanie's
operation he said:
. . . If you look at the material on spinal cord
protection, Nijaffi's (phonetic) work and many
others, Crawford's and others, in every case when the
procedure was carried out with a heart/lung machine,
the bleeding was substantially greater than if they
either used a non-heparinized shunt or if they used
no protection at all. In the context of this
question 692, I'm saying the reason that I did not
propose to use a heart/lung machine was that I did
not wish to heparinize the patient.
[Emphasis added]
[247] The trial judge had abundant evidence from pediatric and
adult cardiovascular surgeons of the surgical techniques
available in 1990. It was for her as the trial judge to decide
whether the surgeon had breached his duty of care in adopting
the surgical technique he used. She instructed herself in the
law in the following paragraph of her judgment:
106 In Belknap v. Meakes (1989), 64 D.l.R. (4th) 452
(B.C.C.A.), Seaton J.A. held, at p. 474:
McNair J. in Bolam v. Friern Hospital
Management Committee, [1957] 2 All E.R. 118
at p. 122 (Q.B.D.), put the issue to the
jury in a way that has been accepted as
correct:
A doctor is not guilty of negligence
if he has acted in accordance with a
practice accepted as proper by a
responsible body of medical men
skilled in that particular art . . .
Putting it the other way round, a
doctor is not negligent, if he is
acting in accordance with such a
practice, merely because there is a
body of opinion that takes a contrary
view.
She concluded the surgeon's conduct fell within the standard
stated by Mr. Justice Seaton.
[248] I have already alluded to the plaintiffs' contention at
trial that the generally accepted practice was negligent. What
the trial judge said in part in paragraph 110 after considering
the ter Neuzen exception is also relevant here:
Considering the very extensive and complex
medical evidence heard in this case, I conclude that
Melanie's condition involved difficult and uncertain
questions of medical treatment, as evidenced by the
conflicting schools of thought on the best approach
to repair a recoarctation and to ensure adequate
spinal cord perfusion. . . . But if one assesses the
circumstances of Melanie's extensive medical history,
Dr. Ashmore's intimate knowledge of her medical
circumstances, the operative site as it was known in
January, 1979 and as it presented in February 1990,
the risks and benefits of the various approaches, and
Dr. Ashmore's skill and knowledge as a surgeon, the
decision to employ spinal protection prophylactically
is not, as required by ter Nuzen, "obvious nor
readily apparent." Furthermore, I am unable to
conclude that "the obvious and reasonable
precautions" were themselves without risks, or that,
if employed, they would have necessarily prevented
Melanie's paraplegia.
[249] In my view, these findings are supported by evidence and
display no error or oversight. Under Toneguzzo, an
intermediate appellate court is not permitted, directly or
indirectly, to come to a contrary conclusion.
b. The Three Alternatives - A question of law?
[250] I come now to my second comment.
[251] I am not persuaded the law in Canada, whether in 1990 or
today, requires a surgeon to volunteer a comparative assessment
of alternative surgical techniques in the knowledge that if he
or she is wrong in that assessment the consent given may be
vitiated.
[252] I have referred to the judgment of Mr. Justice Sopinka in
ter Neuzen. At 216 he quoted with approval the judgment of
L'Heureux-DubĒ J. in Lapointe v. Chevrette, [1992] 1 S.C.R.
351, a case under the Civil Code, at 363-64:
Given the number of available methods of
treatment from which medical professionals must at
times choose, and the distinction between error and
fault, a doctor will not be found liable if the
diagnosis and treatment given to a patient correspond
to those recognized by medical science at the time,
even in the fact of competing theories. As expressed
more eloquently by AndrĒ Nadeau in "La responsabilitĒ
mĒdicale" (1946), 6 R. du B. 153, at p. 155:
[Translation] "The courts do not have
jurisdiction to settle scientific disputes or to
choose among divergent opinions of physicians on
certain subjects. They may only make a finding
of fault where a violation of universally
accepted rules of medicine has occurred. The
courts should not involve themselves in
controversial questions of assessment having to
do with diagnosis or the treatment of
preference."
[Emphasis of Sopinka J.]
[253] The selection of a particular surgical technique as part
of a surgeon's plan of approach from incision to exposure of
the aorta reflects as well as an evaluation of pre-operative
information the knowledge that actual conditions may require
divergence from the plan. Where a number of techniques exist,
the surgeon's experience and skill will be a rational factor.
With all respect to the contrary view, it seems to me the
conclusion stated by my colleague in paragraph [69] of his
reasons, requiring voluntary disclosure of a risk assessment of
surgical techniques, takes the law of risk disclosure beyond
its existing limits into the realm of the surgeon's judgment of
what is perceived as the operation proceeds from anticipation
to reality. See: Wilson v. Swanson, [1956] S.C.R. 804 at 811.
[254] Moreover, it does not appear to be a conclusion shared by
Dr. Miyagishima. In cross-examination he was questioned about
the risk of bleeding with heparin. (For the background to this
see paragraph [246] of these reasons):
Q You said, Doctor, in your evidence last week
that you would accept the risk of bleeding with
heparin, and I was interested when you went
through your hypothetical discussion of
patients. You apparently don't tell patients
that you're accepting that risk; is that so?
A No. I very rarely tell the patient that I'm
going to use heparin and give them all the pros
and cons of heparin, no. I do talk about the
complications of surgery and bleeding is one of
the complications, yes.
Q But you don't talk about the increased risks of
bleeding with heparin?
A I don't normally, no.
[255] And in evidence that concisely fits with the trial
judge's finding he said this in his cross-examination:
Q Let's go over the page, Doctor, to page 4. It
carries over from the preceding page but you
talk about an interposition graft or the jump
graft and about the benefits and safety of
bypass. What you're doing there, Doctor, is
trading one set of risks for another based on
your clinical assessment of which set outweighs
the other?
A About using the type of grafts?
Q Yes.
A Not necessarily. After the aorta is controlled
and I have the patient on bypass, then I will
choose the best approach that I can, and there
are times when I feel that one cannot put an
interposition graft in safely, then I will use a
jump graft.
Q But you do that, Doctor, recognizing, do you
not, that you may be trading one set of risks
for another?
A Oh, yes, yes, I agree.
[256] I come now to the question of whether the surgeon was
negligent in failing to discuss with Melanie the surgical
technique he had selected for the "skin to aorta" phase of the
third operation.
3. Informed Consent - Reibl v. Hughes
[257] It will be seen from the portion of the trial judge's
paragraph 110 I have quoted that she arrived at her conclusion
on the first ground of appeal after taking into account:
" Melanie's extensive history;
" Dr. Ashmore's intimate knowledge of her medical
circumstances;
" the operative site as it was known in January,
1979 and as it presented in February, 1990;
" the risks and benefits of the various approaches;
" Dr. Ashmore's skill and knowledge as a surgeon.
[258] All are agreed the standard to be applied in assessing
the issue of informed consent is found in Reibl, supra.
[259] In that case the plaintiff, then 44 years old, suffered a
massive stroke after an operation for the removal of an
occlusion in the left internal carotid artery. The plaintiff
had formally consented to the operation. He alleged his
consent was not an "informed consent". He succeeded in the
trial court. The Ontario Court of Appeal ordered a new trial.
In the Supreme Court of Canada the judgment at trial was
restored. At 884 the late Chief Justice of Canada speaking for
the Court said:
It is now undoubted that the relationship
between surgeon and patient gives rise to a duty of
the surgeon to make disclosure to the patient of what
I would call all material risks attending the surgery
which is recommended. The scope of the duty of
disclosure was considered in Hopp v. Lepp . . . where
it was generalized as follows:
In summary, the decided cases appear
to indicate that, in obtaining the consent
of a patient for the performance upon him
of a surgical operation, a surgeon,
generally, should answer any specific
questions posed by the patient as to the
risks involved and should, without being
questioned, disclose to him the nature of
the proposed operation, its gravity, any
material risks and any special or unusual
risks attendant upon the performance of the
operation. However, having said that, it
should be added that the scope of the duty
of disclosure and whether or not it has
been breached are matters which must be
decided in relation to the circumstances of
each particular case.
The Court in Hopp v. Lepp also pointed out that even
if a certain risk is a mere possibility which
ordinarily need not be disclosed, yet if its
occurrence carries serious consequences, as for
example, paralysis or even death, it should be
regarded as a material risk requiring disclosure.
[260] In the Supreme Court of Canada the standard of disclosure
apparently adopted by the Ontario Court of Appeal, namely, "the
manner in which the nature and degree of risk is explained to a
particular patient is better left to the judgment of the doctor
in dealing with the man before him", was disapproved as handing
over to the medical profession the entire question of the scope
of the duty of disclosure. While expert medical evidence is
relevant to findings as to the risks that resided in or would
be a result of the recommended surgery, that is not
determinative of the question. At 894 the late Chief Justice
said:
The issue under consideration is a different issue
from that involved where the question is whether the
doctor carried out his professional activities by
applicable professional standards. What is under
consideration here is the patient's right to know
what risks are involved in undergoing or foregoing
certain surgery or other treatment.
The materiality of non-disclosure of certain
risks to an informed decision is a matter for the
trier of fact, a matter on which there would, in all
likelihood, be medical evidence but also other
evidence, including evidence from the patient or from
members of his family.
[Emphasis added]
[261] In discussing a wholly objective standard this was said
at 899 of Reibl:
The adoption of an objective standard does not
mean that the issue of causation is completely in the
hands of the surgeon. Merely because medical
evidence establishes the reasonableness of a
recommended operation does not mean that a reasonable
person in the patient's position would necessarily
agree to it, if proper disclosure had been made of
the risks attendant upon it, balanced by those
against it. The patient's particular situation and
the degree to which the risks of surgery or no
surgery are balanced would reduce the force, on an
objective appraisal, of the surgeon's recommendation.
Admittedly, if the risk of foregoing the surgery
would be considerably graver to a patient than the
risks attendant upon it, the objective standard would
favour exoneration of the surgeon who has not made
the required disclosure. Since liability rests only
in negligence, in a failure to disclose material
risks, the issue of causation would be in the
patient's hands on a subjective test, and would, if
his evidence was accepted, result inevitably in
liability unless, of course, there was a finding that
there was no breach of the duty of disclosure. In my
view, therefore the objective standard is the
preferable one on the issue of causation.
In saying that the test is based on the decision
that a reasonable person in the patient's position
would have made, I should make it clear that the
patient's particular concerns must also be reasonably
based; otherwise, there would be more subjectivity
than would be warranted under an objective test.
Thus, for example, fears which are not related to the
material risks which should have been but were not
disclosed would not be causative factors. However,
economic considerations could reasonably go to
causation where, for example, the loss of an eye as a
result of non-disclosure of a material risk brings
about the loss of a job for which good eyesight is
required. In short, although account must be taken
of a patient's particular position, a position which
will vary with the patient, it must be objectively
assessed in terms of reasonableness.
[Emphasis added]
[262] There followed in Reibl an extensive review of the
evidence of the patient himself, of the patient's wife, and of
the medical experts called on each side.
[263] The Court concluded there had not been sufficient
disclosure of the risk of a stroke and at 927 it was stated:
I do not see in the reasons of the majority of the
Court of Appeal any evidentiary basis for challenging
the findings of the trial judge on the defendant's
breach of the duty of disclosure. Of course, the
medical evidence was relevant to what that duty
entailed but, that said, it was for the trier of fact
to determine the scope of the duty and to decide
whether there had been a breach of the duty entailed
but, that said, it was for the trier of fact to
determine the scope of the duty and to decide whether
there had been a breach of the duty. As I have
already said, the so-called statistical data used by
the trial judge did not affect the grounds upon which
he made his critical findings. The Court of Appeal
held, however, that the trial judge did not examine
the issue of causation with the necessary care that
this issue required. He did not ignore it, even if
he might have gone into it at greater length.
[Emphasis added]
[264] Earlier it was said at 926:
This was certainly a case in which a trial judge,
here an experienced judge, was in a better position
than an appellate court or this Court to determine
what evidence to accept and what conclusions to draw
from it.
[265] In my view the law of Canada where the issue is whether
the consent given was informed is as set out in Reibl. As to
the scope of the duty to be disclosed, that was for the trial
judge to determine, as was said at 928:
Of course, the medical evidence was relevant to what
that duty entailed but, that said, it was for the
trier of fact to determine the scope of the duty and
to decide whether there had been a breach of the
duty.
Thereafter, if the validity of the actual consent is denied,
the trial judge may be required, upon an examination of the
relevant evidence, to apply the modified objective test to
determine whether a reasonable person, knowing all material
risks, would nevertheless have consented to the operation.
[266] In my view Reibl required the trier of fact to take into
account the circumstances of Melanie's extensive history, the
surgeon's intimate knowledge of the medical circumstances, the
operative site as it was in January, 1979 (the second
operation) and as it presented in February, 1990 and the
surgeon's skill and knowledge in order:
. . . to determine the scope of the duty to disclose
material risks and to decide whether there had been a
breach of that duty.
[267] The reference to "material risks" in that quotation is
explained earlier in Hopp v. Lepp, supra, at 209:
The case law on the question of informed consent
or the duty of disclosure has exhibited a variety of
classifications of risks involved in proposed surgery
or therapy. Probable risks, which must be disclosed,
have been contrasted with mere possibilities (as, for
example, risks involved in any operation), but this
dichotomy cannot be absolute because it ought to take
note of whether a risk is or is not quite remote, and
here the gravity of the consequences, if a risk
should materialize, must be brought into account; for
example, the risk of death, even if a mere
possibility, as contrasted with some residual
stiffness of a member of the body. A second
classification, expressed in American cases and
American writings, is that of material and immaterial
risks. Under this classification possible risks
whose consequences would be grave could well be
regarded as material. Materiality connotes an
objective test, according to what would reasonably be
regarded as influencing a patient's consent.
[Emphasis added]
[268] In my view the trial judge's finding on the issue of
disclosure of material risks conformed to the law laid down in
Reibl. The unusual feature in the case at bar is the
assumption by this Court of a responsibility of the trial court
on the ground the trial judge failed to give effect to a view
of the law never pleaded nor argued before her.
[269] I have earlier indicated why I cannot agree that either
the common law or the statutory regime in force in 1990
excludes consideration of the totality of the factors alluded
to in Reibl. Melanie's circumstances did not commence with her
admission to the B.C. Children's Hospital in 1989 nor is the
validity of her actual consent to be determined by relegating
her parents to the largely passive role of advisors.
[270] Unlike the brief relationship in Reibl between the 44
year old patient and the specialist surgeon to whom he was
referred and saw for the first twelve days before the
operation, the relationships in question here extend back to
Melanie's birth.
[271] She was born with a constriction of the aorta - a
coarctation. In some 18 of the 65 pages of her judgment the
trial judge reviewed Melanie's medical history and her
relationship with her medical advisers. Of this history she
said:
59 This rather lengthy review of Melanie's medical
history up to the date of the surgery which is the
focus of this action is necessary for several
reasons. First, it demonstrates the seriousness and
relative intractability of Melanie's condition.
Second, it shows the long and active involvement of
Dr. Patterson and Dr. Ashmore in Melanie's care.
Third, it reveals, in necessarily superficial detail,
the numerous concerns of the various physicians
involved in Melanie's care as well as the concerns of
Melanie and her parents.
[272] The whole of this review deserves to be read, as does the
careful judgment of which it is a part. An obvious feature is
the continuing relationship of the cardiologist, Dr. Patterson,
and the surgeon, Dr. Ashmore, with the Van Mols. With the
former, this relationship commenced when Melanie was 14 days
old.
[273] Dr. Patterson conducted a cardiac catheterization which
confirmed the presence of a coarctation and the ultimate need
for corrective surgery. His evidence of the early years is
important as he was in many respects the professional link
between those who provided care to Melanie and the Van Mol
family.
[274] In his paragraph [121] my colleague sets out from Dr.
Ashmore's evidence in chief his recollection of his discussions
with Melanie and the risks and benefits of the third operation.
This is not the only evidence on this subject and I will refer
later to what Dr. Ashmore said in his cross-examination.
[275] Nor is reference made to Dr. Patterson's evidence of his
risk discussions. Melanie was born in Prince Rupert on 8
November 1973. She was admitted to hospital there on 18
November and two days later transferred to the Terrace Hospital
for examination by a pediatrician. A coarctation was suspected
and the parents were referred to Dr. Patterson as a
cardiologist specializing in pediatric cases. Melanie was
transferred to the Vancouver General Hospital and Dr. Patterson
confirmed the presence of a coarctation. His early prognosis
was:
Q And what was your prognosis for this child as of
November 22nd, 1973?
A We felt if she got over her acute decompensation
with medical therapy that she do well enough to
have her coarctation repair deferred and there
was the prognosis -- the immediate prognosis was
quite good. The long term prognosis was also
quite good but there was a concern that having
presented so early with symptoms of coarctation
that we were in for a fairly unclear, long-term
outcome.
Q Did you have any expectation at that stage
whether surgery would be required?
A We knew surgery would be required. It was just
a question of when.
Q Why not do surgery right then?
A The reason to avoid surgery at that point is
that some children with coarctation may
stabilize and develop collaterals and grow with
medical support such that the high risk period
of repair, which we usually identify at that
point as within the first two or three months by
being a newborn baby, the surgical encroachment,
if you will, the stress of surgery was often --
could result in serious complications and
sometimes death. So, our aim then was always to
try and postpone coarctation repair certainly
beyond three months and if possible beyond a
year based on the results of surgery in the
newborn which were less than spectacular.
[276] The recommended surgery was performed by Dr. Ashmore on 3
December 1975 when Melanie was in her third year. Dr.
Patterson was asked in his examination in chief what he would
have said to her parents. His reply follows:
I would have indicated the type of procedure that
would need to be carried out to relieve the
narrowing, that it would be closed heart surgery, it
would be done through the left chest, that there
might be some bleeding on the way in but there
usually was not a great deal of technical difficulty
with the first coarctation but how the surgery dealt
with the area of narrowing would be something that
would be decided by the surgeon either prior to the
procedure or often in the actual operating room since
that was the commonest way -- they did not often know
what kind of approach would be taken to repair a
coarctation until the child got back from the
operating room. They might do a graft, resect the
area of narrowing or they might use some other
manoeuvre to relieve it. So, this was something that
the surgeon would go into more detail how they might
deal with it but it may not be well-known until
actually after the operation.
People usually want to know how long it will
take and we tell them it will take two to three hours
by the time everybody is organized but it is not a
long operation and that the danger is with bleeding
and sometimes the possibility of a stroke and
clotting of the coarctation in the immediate post-
operative period were the sort of complications.
[277] Dr. Patterson performed an angioplasty in July, 1987.
This procedure, a balloon dilation of the aorta, may be
performed by a cardiologist. He testified he would have
advised the Van Mols of the risks and benefits of this
procedure and why a surgical team, headed by Dr. Ashmore, would
be standing by in case any of the risks eventuated.
[278] I digress at this point to note Melanie's two surgeries
which were unconnected with her aortic condition. One was a
procedure to relieve deafness in one ear. The other involved
the bladder. Both were performed by specialists. Mrs. Van Mol
had a fair recall of what was to be done. Although there were
risks she had no recollection of any risk discussion with
either surgeon. It is difficult to conceive how responsible
surgeons could undertake these procedures, one of which was
done under general anaesthetic, without the informed consent of
Mrs. Van Mol who was the parent responsible for the children's
health. That, however, was her evidence. It appears both
these operations took place after the second heart operation in
1975 and the angioplasty in 1987.
00\C9 Nor did Melanie recall any risk discussion prior to the
third recoarctation operation. She maintained there was no
such discussion and that had she been made aware of the risks
she would have left the hospital. Her only recollection of Dr.
Ashmore before the third operation was hearing him calm her
father who was upset over the latest delay in the operation.
She was fearful of being murdered, an idea she termed silly at
the time of the trial but a real fear at the time she consulted
the family doctor, Dr. Burnside, in Kamloops in April 1989.
The latter's chart indicates that on April 1989 Dr. Patterson's
letter recommending the third operation was discussed and on 11
April Melanie was "`worrying' re death". Melanie accepted the
risk of dying but denied knowledge of this risk from any of
Drs. Patterson, Ashmore and LeBlanc.
[280] I do not propose reviewing the evidence of the Van Mols.
It is enough at this point to say the trial judge was required
to undertake what is arguably the most difficult adjudicative
task of all - deciding which of two conflicting versions
advanced by and on behalf of honest people is to be accepted as
that most closely approximating what in fact took place.
[281] Her finding is set out in the following paragraph:
130 It is exceedingly difficult to determine whether
the appropriate risk discussion took place. Melanie
and her parents obviously believe that no such
discussion took place. Dr. Ashmore's evidence as to
his recollection of discussion of risk and as to his
usual practice was candid and credible. There are
none of the markers of dishonesty or deception in any
of their testimony upon which a finding is easily
made. However, considering the evidence as a whole,
I conclude that, on a balance of probabilities, Dr.
Ashmore had the appropriate risk discussion with the
Van Mols.
[282] This is not a finding based on deciding that one party is
not telling the truth and the other is. It is a finding that
upon all the evidence it is more probable than not that the
version espoused by the doctors is what happened. Such a
finding cannot be set aside by an appellate court unless there
is shown to be error that can be characterized as "palpable and
overriding". This phrase has become hackneyed but it is
nonetheless declaratory of the law. I refer to the observation
of Mr. Justice Esson of this Court in Menzies v. Harlos (1989),
37 B.C.L.R. (2d) 249 at 252:
This may be an appropriate point at which to say
something about the burden which the appellant had to
discharge on this appeal. The issues were almost
entirely factual. It therefore could not be enough
to satisfy us that there had been error by the trial
judge - it was necessary to demonstrate that his
decision was affected by palpable and overriding
error. Those strong words, sometimes called the
"Kathy K. rule", have been repeated so often in
recent years that they may have tended to lose their
impact. But, as we have been reminded many times by
the Supreme Court of Canada, they establish a test
which cannot often be met, one of which sometimes
requires appellate judges to dismiss an appeal
notwithstanding their own view of the "rightness" of
the decision, and which forbids them from retrying
the case.
[283] Earlier in these reasons I concluded that in 1990 there
was no basis in law for denying Melanie's parents a part in
consenting to the third operation. I also endeavoured to
demonstrate that a consideration of Melanie's medical history
and its relationship to Drs. Ashmore and Patterson was
relevant.
[284] Dr. Miyagishima, in his evidence in chief, testified how
he would have dealt with the question of risk disclosure if
Melanie had been referred to him immediately before the third
operation.
[285] He stated he would have seen her in the company of her
parents. He would have recommended the third operation and he
would have sought to persuade them the third operation should
be undertaken immediately, although a delay of up to two years
could be tolerated. He would explain he suspected the
adhesions, the scarring would be denser and that her collateral
circulation to the lower extremities may not be the same as in
the first and second operation. He would say, based on these
considerations, he would institute a support system using, for
his part, a heart pump system. What he would do to achieve a
repair would depend on what he found after he reached the aorta
and clamped above and below the narrowing. He would not
explain the technology of the bypass machine except to the
extent of telling Melanie and her parents an incision would be
made in her groin. Beyond that he would answer questions. He
would not have discussed the risks associated with the use of
the bypass machine or compare it with other support systems.
[286] He would explain why the third operation should be
undergone, citing as one reason, the potential risk of creating
an aneurysm at the repair site if bacteria got into the blood
stream as a result of dental work. He said he would reassure
the patient by stating this risk was extremely low.
[287] I have summarized his evidence in chief. Although not so
stated I infer he would expect consent from the three persons.
[288] I have alluded to this evidence to illustrate that the
trial judge had the benefit of a full discussion of surgical
techniques and options available in the management of the third
operation. Her conclusions reflected the evidence of how
surgeons viewed the risks and benefits of these options. There
was ample evidence supporting the trial judge's conclusion as
stated in paragraph 104 of her reasons which I repeat here:
The various views expressed by all the surgeons,
and which is reflected in the medical literature,
make it plain that the decision is not simply one of
shunt or no shunt; or patch aortaplasty, or jump
graft, or interpositional graft. The evidence is
clear that every option available to the surgeon (be
it an operative approach or a mechanism for spinal
cord protection) carries with it positive and
negative features. The mere fact that so many
procedures are available and are considered
appropriate in the repair of recoarctations is
perhaps the best proof that there is no one accepted
school of medical thought as to the best operative
approach.
[289] The trial judge found that one risk Dr. Ashmore did not
foresee was that in positioning the proximal clamp a tear in
the aorta would occur. There was evidence this was a rare and
unexpected occurrence. Dr. Trusler called it rare and
exceptional. Dr. Miyagishima accepted Dr. Penkoske's statement
that this was a technical problem, not due to negligence, that
can occur whenever one is operating upon vascular structures.
[290] The evidence of what Dr. Ashmore did, in addition to his
evidence in chief quoted by my colleague, can be summarized as
follows:
a. He discussed with Melanie that basically what `we were
going to do was what we did in the second operation - put
another patch on the aorta to try to make it work
permanently'. He felt sure he had talked to Melanie about
Dr. Burnside's letter of 20 April 1989.
b. He made the parents know a Gott shunt would be available
in the context of spinal cord damage, not using that name
but saying `we had a device available to deal with the
problems that might exist; to be implemented to protect
the lower part of Melanie's body against the risks of
diminished blood flow, only if necessary'.
c. He was sure he did refer to the risk of restenosis, the
recurrence of the narrowing of the aorta, as he recalled
Mr. Van Mol's questions on this subject.
d. In talking to Melanie alone the possibility of death was
mentioned, not dwelt on, as she was aware, as were her
parents, of the mortality involved. He said he was the
source of this. He was not sure if he talked to Melanie
alone about spinal cord damage, as he had with her
parents.
It will be seen that there is no direct claim the surgeon
discussed the surgical technique he planned to follow with
Melanie alone other than by reference to the second operation.
[291] There was evidence, if accepted by the trial judge, that
the appropriate risk discussions took place if all three
plaintiffs are treated as one. In my view they should be.
Since the trial judge's finding was based on the credibility of
the witnesses directly concerned, I am of the view the record
discloses no palpable and overriding error. There is one
proviso: if the view of the majority is correct and a
voluntary discussion of the comparative risks of the surgical
options from skin to aorta is material is required, then it
would seem clear the modified objective standard adopted in
Reibl must be applied. This is in fact what the trial judge
did in paragraph 131. In light of all the relevant evidence in
the case at bar, I am in complete agreement with her analysis.
[292] I would add only one further comment. None of Dr.
Ashmore's surgeries had resulted in paraplegia or mortality.
This would have been a significant consideration for parents
whose child was experiencing the irrational, but for her at the
time, very real fear of murder.
IV. LARYNGEAL NERVE DAMAGE
[293] The conclusion reached by my colleague in Part XVIII of
his reasons for judgment is that laryngeal nerve damage is a
compensable head of damage in Melanie's claim against Dr.
Ashmore. The premises of this conclusion are:
a. The damage occurred near where the tear in the aorta
occurred. Whether done by Dr. Ashmore or Dr. LeBlanc in
dissection cannot be determined.
b. The breach of duty on the part of Dr. Ashmore in failing
to have a proper risk discussion with Melanie deprived her
of the choice of having a by-pass machine and this was the
cause in fact and law of her laryngeal nerve damage.
[294] In my view, it does not necessarily follow that if Dr.
Ashmore had described the surgical techniques available Melanie
(and her parents) would inevitably have opted to have a by-pass
machine ready, given the risks perceived by Dr. Ashmore of
heparinization.
[295] Dr. Miyagishima at p. 3 of his report said:
In my opinion, the prudent approach to the surgery
would be to drape the patient so that the left groin
is exposed. Have a heart-lung machine ready in the
operating theatre along with a perfusionist. Through
a left thoracotomy, the degree of fibrosis, scarring,
adhesion and friability of the aorta at the
coarctation cite is carefully assessed. This
assessment should be done before any extensive
dissection takes place. If there is any question
that the dissection will be hazardous, the femoral
artery is exposed and isolated. The patient is
heparinized and then `left atrial to femoral artery'
or `femoral vein to femoral artery' cardiopulmonary
bypass is instituted.
[Emphasis added]
As I read this, if the visual inspection by the surgeon does
not indicate dissection would be hazardous, the operation would
proceed without putting the patient on by-pass.
[296] Furthermore, Dr. Miyagishima's remark on the next page of
his report indicates the damage to the laryngeal nerve is a not
unexpected incident to any dissection in the area of the aorta:
The injury to the recurrent laryngeal nerve is
related to the operation but this is not unexpected
in that the recurrent laryngeal nerve would be
involved in the adhesions and scarring and any
dissection and cross-clamping in this area would put
this nerve at risk.
He did not indicate in his testimony at trial that this risk
was one to be voluntarily disclosed to the patient.
[297] I have not found other references to the damage to this
nerve and I am not persuaded that the principle of Farrell v.
Snell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289, has any
application. That case stands for the proposition the
plaintiff must prove his case but the onus shifts and the
defendants must disprove causation if there is evidence of
negligence which might be a possible explanation for the damage
claimed. The alleged negligence in not explaining the surgical
options open to the patient bears no necessary relationship to
the damage to the laryngeal nerve which may be caused by
dissection whether or not the heart pump is used. The
necessary nexus is missing.
V. CONCLUSION
[298] I would dismiss the appeal.
"The Honourable Mr. Justice Goldie"