Supreme Court Judgments

Supreme Court of Canada

Reibl v. Hughes, [1980] 2 S.C.R. 880

Date: 1980-10-07

John Reibl (Plaintiff) Appellant;

and

Robert A. Hughes (Defendant) Respondent.

1980: June 5; 1980: October 7.

Present: Laskin C.J. and Martland, Dickson, Beetz, Estey, Mclntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Battery—Consent—Disclosure—Endarterectomy to reduce risk of later stroke—Risk of stroke or death during or in aftermath of surgery—Stroke suffered causing paralysis—No disclosure save for advice that possibility of stroke greater without operation—Whether or not consent valid—Whether or not battery.

Physicians and surgeons—Negligence—Duty of care—Disclosure—Causation—Endarterectomy to reduce risk of stroke—Risk of stroke or death during or in aftermath of surgery—Stroke suffered causing paralysis—No disclosure save for advice that possibility of stroke greater without operation—Respondent aware of appellant’s concern about the vesting of his pension—Whether or not respondent negligent.

While or immediately after undergoing serious but competently performed surgery, Reibl suffered a massive stroke causing paralysis on the right side of the body and impotence. Stroke, paralysis, or even death, were among the risks attending both this surgery or its aftermath and the patient’s refusal to undergo the operation. In answering the patient’s query about the possibility of stroke, the surgeon did not inform him of his chance of being paralyzed during or shortly after the operation but stressed that the chances of paralysis were greater if the patient did not undergo surgery. The patient testified that he would have foregone this elective surgery until a lifetime retirement pension had vested in a year and a half, and would have opted for a shorter, normal life rather than a longer one as a cripple. The nature of the information provided by the respondent surgeon and its adequacy in the circumstances were central to the matters considered by the Court.

Reibl, at trial, recovered damages in both battery and negligence, despite his formal consent to the surgery, on the ground that his was not an “informed consent”; he had claimed that he had not been informed of stroke and paralysis as a result of the operation. The Ontario Court

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of Appeal ordered a new trial on both liability and damages but ruled out battery as a possible ground of liability. Only liability was disputed before this Court. Defendant respondent sought both to hold the judgment in appeal and to vary it by dismissal. The time elapsed since the physical damage was suffered made a new trial undesirable.

Held: The appeal should be allowed.

In the absence of good reasons to order a new trial on liability alone, the proper course was either to restore the judgment at trial on either or both grounds upon which it proceeded or to relieve the defendant respondent of his ability.

The popularization of the term “informed consent” for what was, in essence, a duty of disclosure of certain risks or therapy influenced the retention of battery as a ground of liability, even where there was express consent which was not exceeded. The distinction between situations where a failure of duty of disclosure would support an action of battery and where such failure was indicative of negligence alone was, however, not only difficult to apply but also incompatible with the elements of the cause of action in battery. Such actions, in respect of surgical or other medical treatment, should be confined to those cases where surgery or treatment had been performed or given without any consent or, emergency situations aside, beyond the consent given. This standard comprehended cases where there was misrepresentation of the surgery or treatment for which consent was elicited and a different surgical procedure or treatment was carried out. In situations where it was alleged that attendant risks that should have been disclosed were not communicated to the patient and yet the surgery or other medical treatment carried out was that to which the plaintiff consented (assuming no basis of liability on the ground of negligence), the consent was not vitiated by the failure of disclosure so as to make the surgery or other treatment an unprivileged, unconsented to and intentional invasion of the patient’s bodily integrity. In spite of the temptation to say that the genuineness of consent to medical treatment depended on proper disclosure of the risks which it entailed, unless there had been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks,

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however serious, should go to negligence rather than battery.

When dealing with the standard of disclosure of risks, it would be going too far to say “the manner in which the nature and degree of risk was explained to a particular patient was better left to the judgment of the doctor in dealing with the man before him”. To allow expert medical evidence to determine what risks were material and to be disclosed and what risks were not material, would be to hand over to the medical profession the entire question of the duty of disclosure, including whether there was a breach of that duty. Expert medical evidence was, of course, relevant to findings as to risks that resided in or were a result of recommended surgery or other treatment. Testing the standard of disclosure of risks by expert medical evidence was not determinative because the patient could have expressed concerns to the doctor which the doctor would be obliged to meet in a reasonable way. What the doctor knew or should have known that the particular patient deemed relevant to a decision whether or not to undergo prescribed treatment went equally to his duty of disclosure as did the material risks recognized as a matter of required medical knowledge. The materiality of non-disclosure of certain risks to an informed decision was a matter for the trier of fact—a matter on which there would be probably medical evidence but also other evidence from the patient or other member of his family.

On the issue of causation, the Court considered objectively how far the balance in the risks of surgery or no surgery was in favour of undergoing surgery. The failure of proper disclosure pro and con and any special considerations affecting the particular patient became very material. Merely because medical evidence established the reasonableness of a recommended operation did 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 risk of surgery or no surgery were balanced would reduce the force, on objective appraisal, of the surgeon’s recommendation. In deciding what decision a reasonable person in the patient’s position would have made, the patient’s particular position should be considered objectively and not subjectively.

Here, a reasonable person in the plaintiffs position would, on the balance of probabilities, have opted

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against the surgery rather than undergoing it at the particular time.

Hopp v. Lepp, [1980] 2 S.C.R. 192; Kelly v. Hazlett (1976), 15 OR. (2d) 290; Schloendorff v. Society of New York Hospital (1914), 211 N.Y. 125, 105 N.E. 92, considered.

APPEAL from a judgment of the Court of Appeal for Ontario[1], ordering a new trial on both liability and damages. Appeal allowed.

D.W. Goudie, Q.C., for the plaintiff, appellant.

D.K. Laid law, Q.C., and C.L. Campbell, Q.C., for the defendant, respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The plaintiff appellant, then 44 years of age, underwent serious surgery on March 18, 1970 for the removal of an occlusion in the left internal carotid artery, which had prevented more than a fifteen per cent flow of blood through the vessel. The operation was competently performed by the defendant respondent, a qualified neurosurgeon. However, during or immediately following the surgery the plaintiff suffered a massive stroke which left him paralyzed on the right side of his body and also impotent. The plaintiff had, of course, formally consented to the operation. Alleging, however, that his was not an “informed consent”, he sued for damages and recovered on this ground in both battery and negligence. The trial judge, Haines J., awarded a global sum of $225,000.

A majority of the Ontario Court of Appeal ordered a new trial on both liability and damages. Speaking through Brooke J.A. (Blair J.A. concurring) the Court ruled out battery as a possible ground of liability on the facts of the case. Jessup J.A., dissenting in part, would have ordered a new trial on damages alone, accepting the judgment at trial on liability.

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On the hearing of the appeal by this Court, leave to come here having been obtained by the plaintiff, counsel for the defendant respondent agreed to accept the award of damages and limited his contestation to liability, seeking not only to hold the judgment in appeal but a “variation” thereof by way of dismissal of the action. Although, strictly speaking, the claim for a variation should have been made the subject of a cross-appeal, counsel for the appellant took no objection and I see no reason why I should not regularize the claim for dismissal nunc pro tunc. Indeed, neither counsel wished to have a new trial, an understandable position when the physical damage suffered took place more than ten years ago. Unless, therefore, there are good reasons to support the order for a new trial on liability alone, the proper course is to determine whether to restore the judgment at trial on either or both grounds upon which it proceeded or whether the defendant should be relieved of liability.

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[2], at p. 210, 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, supra, 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

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example, paralysis or even death, it should be regarded as a material risk requiring disclosure.

In the present case, the risk attending the surgery or its immediate aftermath was the risk of a stroke, of paralysis and, indeed, of death. This was, without question, a material risk. At the same time, the evidence made it clear that there was also a risk of a stroke and of resulting death if surgery for the removal of the occlusion was refused by the patient. The delicacy of the surgery is beyond question, and its execution is no longer in any way faulted. (I would note here that in this Court no issue was raised as to the adequacy of post-operative care.) How specific, therefore, must the information to the patient be, in a case such as this, to enable him to make an “informed” choice between surgery and no surgery? One of the considerations weighing upon the plaintiff was the fact that he was about a year and a half away from earning a lifetime retirement pension as a Ford Motor Company employee. The trial judge noted (to use his words) that “due to this tragedy befalling him at the time it did, he was not eligible for certain extended disability benefits available under the collective agreement between the Ford Motor Company of Canada, Limited and its hourly employees of ten years’ standing”. At the time of the operation, the plaintiff had 8.4 years’ service with his employer. He stated in his evidence that if he had been properly informed of the magnitude of the risk involved in the surgery he would have elected to forego it, at least until his pension had vested and, further, he would have opted for a shorter normal life than a longer one as a cripple because of the surgery. Although elective surgery was indicated for the condition from which the plaintiff suffered, there was (as the trial judge found) no emergency in the sense that immediate surgical treatment was imperative.

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This brings me back to the question of the nature of the information provided by the respondent surgeon to the plaintiff and its adequacy in the circumstances. I will deal, in turn, with (1) the findings and conclusion of the trial judge on this issue; (2) whether, even on his findings, there was a basis for imposing liability for battery; (3) the assessment made by the Court of Appeal in ordering a new trial; (4) the evidence in the case, which consisted, in support of the plaintiff’s case, mainly of the testimony of the plaintiff and of two neurosurgeons, Dr. Irving Schacter and Dr. Robert Elgie, and portions of the examination for discovery of the defendant and, in support of the defendant’s case, the testimony of the defendant and of a neurosurgeon, Dr. William Lougheed, who were the only two witnesses called for the defendant; (5) the duty of disclosure and review of the findings below and (6) whether causation was established.

1. The Findings of the trial judge

The trial judge approached the question of proper disclosure of the attendant risks by first defining the scope of the duty of disclosure. He said this:

In respect of a claim in negligence, the issue of informed consent to treatment is a concomitant of the physician’s duty of care. A surgeon’s duty to exercise due skill and care in giving his patient reasonable information and advice with respect to the risks specifically attendant on a proposed operative procedure arises out of the special relationship between them. It is a particular case of the duty which is cast on professional persons in a fiduciary position called upon specifically or by implication to give information or advice to a client intending and entitled to rely on his statements to determine his course: Nocton v. Lord Ashburton, [1914] A.C. 932; Kenny v. Lockwood [1937] O.R. 142. That duty does not require warning the patient of the dangers incident to or possible in any surgical procedure, such as the dangers of anaesthesia or the risk of infection, matters which men of ordinary knowledge are presumed to appreciate. It relates to the specific risks within the surgeon’s knowledge peculiar to the contemplated treatment. The scope of this professional duty of care is defined by the evaluation of a variety of inter-related factors which bear uniquely on each case, factors such as the presence of an emergency requiring immediate

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treatment; the patient’s emotional and intellectual make-up, and his ability to appreciate and cope with the relevant facts; the gravity of the known risks, both in terms of their likelihood and the severity of this realization. The difficulty evident for the independent evaluation of these factors by a lay tribunal has caused the law of this jurisdiction to leave the definition of the scope of this duty in any particular case a matter essentially of medical judgment, one to be determined by the court on the basis of expert medical evidence.

The trial judge then proceeded to make his findings, as follows:

I find, on the basis of the expert evidence of Doctors Schacter and Elgie, that in the circumstances of this case, the duty of the surgeon as defined by accepted general practice in the neurosurgical community was to explain to the patient the problem presented by stenosis [that is, narrowing] in such an artery, and because of the serious possible complications to the central nervous system, to do his best to explain to the patient the specific risks inherent in arterial surgery of this kind, with sufficient attention to anatomical and statistical detail to import to the patient an understanding of the degree of risk which he faced of either dying as a result of the operation or of suffering a stroke that might leave him disabled. It was further the duty of the surgeon in these circumstances to explain to the patient the risks of continuing without surgery. The choice whether to proceed was then one which the patient would make for himself, armed, albeit, with what both experts agreed would be the surgeon’s recommendation to proceed, but aware, nevertheless, that for good reason there was an acceptable option to forego the procedure.

The duty of which I speak is not one which in the circumstances was difficult to execute. As I have indicated, the plaintiff is an intelligent man and fully capable of following a simple but sufficient explanation of the risk he was being asked to undertake. I am satisfied had Dr. Hughes said to the plaintiff calling him in and a sketch if necessary to clarify his meaning—”I propose to remove a partial plug in an artery a few inches from your brain. There is a risk that as a result a fragment of tissue may slip into your brain and if it does, you have a 4 per cent chance of dying and a further 10 per cent chance of having a stroke”, there is no question the plaintiff would flatly have refused. The plaintiff was entitled to know that risk and the defendant owed a duty to disclose it to him. I am left with no doubt, after evaluating the testimony of the plaintiff and

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his wife, and that of the defendant, as well as the relevant portions of the transcript of the defendant’s examination for discovery that the defendant fell short in his performance of this duty in two material respects. First, I find that although the defendant did impart to the plaintiff an understanding of the mechanics of the operation, to the extent that the plaintiff was made aware that pluggage was to be surgically removed from an artery leading to his brain, the defendant did not take sufficient care to communicate to the plaintiff the purpose of the operation, I find that as a result the plaintiff was probably left with the misunderstanding that the operation was being undertaken to alleviate his headaches and hypertension and to permit him to function effectively at his job. Further, and most importantly, I find that the defendant did not take sufficient care to convey to the plaintiff and assure that the plaintiff understood the gravity, nature and extent of risks specifically attendant on the endarterectomy, in particular the risk that as a result of the operation he could die or suffer a stroke of varying degrees of severity. The defendant’s evidence on this issue suffers from the understandable inconsistencies and vagueness that the passage of six and one-half years of time will import. What on balance, I take from his evidence however is that he informed the plaintiff that he would be better off to have the operation than not. At best, the ambiguity of his language I find was such that it would likely convey, even to a patient whose command of English was more perfect than was the plaintiff’s, the understanding that the single relevant area of concern was the relative likelihood of a healthy existence in the coming years with, as opposed to without, the surgery. I find that he did not address with the attention required of him the specific risks of an adverse result of the operation itself. The plaintiff was left with the impression that the operation carried no risks of consequence, other than those incidental to any surgical procedure. I find further, that as a result of the defendant’s breach of duty, the plaintiff gave his assent to the performance of the operation, an assent which I am convinced from the evidence he would not have given had the defendant’s aforesaid duty not been performed in the negligent manner which I have described.

For the reasons above stated, I am also of the view that the defendant is liable in battery.

2. Liability for Battery

In my opinion, these findings do not justify the imposition of liability for battery. The popularization of the term “informed consent” for what is, in

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essence, a duty of disclosure of certain risks of surgery or therapy appears to have had some influence in the retention of battery as a ground of liability, even in cases where there was express consent to such treatment and the surgeon or therapist did not go beyond that to which consent was given. It would be better to abandon the term when it tends to confuse battery and negligence. Haines J., the trial judge, adopted the distinction drawn by Morden J., as he then was, in Kelly v. Hazlett[3] between situations where a failure in the duty of disclosure would support an action of battery and where such a failure is indicative of negligence alone. Morden J. said this at pp. 312-13:

It appears to me that it is reasonable to look at the matter of informed consent, as far as an alleged battery is concerned, from the point of view of what information was communicated. If the basic nature and character of the operation performed is substantially that of which the plaintiff was advised, and then agreed to, then there has not been an unconsented to invasion of the person of the plaintiff, regardless of any failure to disclose any collateral risks flowing from the operation. However, such failure, if it can be shown to have resulted in damage to the patient, and was not justified by reasonable medical considerations, may properly be subject-matter for a claim based on negligence.

…

However, it has to be recognized that this test has both its practical and, perhaps, its policy frailties. In some cases it may be difficult to distinguish, and separate out, the matter of consequential or collateral risks from the basic nature and character of the operation or the procedure to be performed. This may possibly have been the case in Halushka v. University of Saskatchewan [(1965), 53 D.L.R. (2d) 436]. The more probable the risk the more it could be said to be an integral feature of the nature and character of the operation. Further, even if a risk is truly collateral, but still material, it could be said that its disclosure is so essential to an informed decision to undergo the operation that lack of such disclosure should vitiate the consent.

That judge said earlier in his reasons (at p. 310) that. “The issue of ‘informed’ consent can arise in both battery and negligence cases: with respect to

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the former a lack of proper information communicated by the doctor to the patient can vitiate an apparent consent while, with respect to the latter, failure to see to it that the patient is properly advised can amount, in certain circumstances, to an act of negligence”.

I find the attempted distinction not only very difficult of application but also as incompatible with the elements of the cause of action in battery. The tort is an intentional one, consisting of an unprivileged and unconsented to invasion of one’s bodily security. True enough, it has some advantages for a plaintiff over an action of negligence since it does not require proof of causation and it casts upon the defendant the burden of proving consent to what was done. Again, it does not require the adducing of medical evidence, although it seems to me that if battery is to be available for certain kinds of failure to meet the duty of disclosure there would necessarily have to be some such evidence brought before the Court as an element in determining whether there has been such a failure.

The well-known statement of Cardozo J. in Schloendorff v. Society of New York Hospital[4], at pp. 129‑30 and at p. 93 respectively, that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” cannot be taken beyond the compass of its words to support an action of battery where there has been consent to the very surgical procedure carried out upon a patient but there has been a breach of the duty of disclosure of attendant risks. In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond

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that to which there was consent.

This standard would comprehend cases where there was misrepresentation of the surgery or treatment for which consent was elicited and a different surgical procedure or treatment was carried out. See, for example, Marshall v. Curry[5] (consent given to operation to cure hernia; doctor removes patient’s testicle; action in battery); Murray v. McMurchy[6] (consent given to a caesarian operation; doctor goes on and sterilizes the patient; doctor liable for trespass to the person); Mulloy v. Hop Sang[7] (doctor told to repair hand and not to amputate; performs amputation; held liable in trespass); Winn v. Alexander and the Soldiers’ Memorial Hospital[8] (consent given to caesarian; doctor goes further and sterilizes the patient); Schweizer v. Central Hospital et al.[9] (patient consented to operation on his toe; doctor operated on back instead (spinal fusion); doctor liable for trespass to the person).

In situations where the allegation is that attendant risks which should have been disclosed were not communicated to the patient and yet the surgery or other medical treatment carried out was that to which the plaintiff consented (there being no negligence basis of liability for the recommended surgery or treatment to deal with the patient’s condition), I do not understand how it can be said that the consent was vitiated by the failure of disclosure so as to make the surgery or other treatment an unprivileged, unconsented to and intentional invasion of the patient’s bodily integrity. I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the

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treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery. Although such a failure relates to an informed choice of submitting to or refusing recommended and appropriate treatment, it arises as the breach of an anterior duty of due care, comparable in legal obligation to the duty of due care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent.

3. The Assessment of the Court of Appeal

Brooke J.A., speaking for the majority of the Court of Appeal, noted, quite properly, that “The duty [of disclosure] to the patient is determined by the court and the evidence of the expert witnesses, if accepted, is relevant to determining whether or not the defendant has discharged that duty. To be actionable [in negligence] the defendant’s failure in his duty of care must cause the plaintiff loss and damage”. He went on to examine the reasons of Haines J. and made the following observations upon that trial judge’s determination:

In finding that the plaintiff was left with the impression that the surgery carried no risk of consequence other than those in any surgical procedure I think it must be assumed that the learned trial judge has rejected the defendant’s explanation that the plaintiff was aware of the risk of a stroke as a risk of the surgery. Of some importance, the learned trial judge makes no specific finding of credibility and indeed does not disbelieve the defendant’s evidence that he thought the plaintiff understood the risk. However, the learned trial judge did not put his judgment simply on the failure to warn, but also on the failure to take sufficient care to discuss the degree of risk. He relied upon the evidence of doctors Elgie and Schacter and it is my respectful view that, having regard for the emphasis which the learned trial judge places upon the statistical details, he has misunderstood the real significance of the evidence of these two doctors. Doctors Schacter and Elgie appear to have taken a similar approach to the question of explaining the risks of the surgery, but the emphasis is not on statistical detail. Dr. Elgie alone made reference to statistics in discussing the manner in which he would advise his patient when seeking a consent to perform this

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operation and in this respect his answer was different from that of Dr. Schacter.

Brooke J.A. was highly critical of the use of unexplained statistics which appeared to be directed to the degree of risk involved in the particular surgery. This is what he said in that respect:

One need only look at the contrast in the evidence of the statistics quoted by Dr. Hughes and Dr. Elgie to demonstrate the confusion that could arise from their use. When asked in cross‑examination, Dr. Hughes’ figure as to the incidence of death because of surgery was 4%, which was equal to Dr. Elgie’s highest figure where he put the range between 2 and 4% and with respect to the incidence of stroke causing paralysis or transient weakness, Dr. Hughes put the figure at 10% which was five times Dr. Elgie’s lowest figure and almost two and one half times his highest figure. Taken cumulatively, Dr. Hughes’ figure at 14% is more than three times Dr. Elgie’s lowest estimate and almost twice his highest. They were really very different. The reason for the difference went unexplained. No one asked the doctors. And yet the trial judge referred principally in his reasons, and particularly in testing the defendant’s conduct, to the statistics recounted by Dr. Hughes, which there was no suggestion the doctor attempted to use. If the difference is based solely or partly on the personal experience of the surgeons, and there is in the evidence some reason suggested that this may be so, then perhaps the explanation lies in the nature of the cases that each has dealt with and that the chance of survivorship of those undertaken by one was less than the other. If this is so, there may have been good reason not to mention statistics to the patient, but rather to simply contrast his position if he undertakes the surgery with that of not undertaking it and urge him to proceed because of his youth and strength giving some assurance of survivorship. I do not think the evidence justifies the statement made by the learned trial judge and I would hesitate to lay down any such requirements, for in my view statistics can be very misleading. 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. Its adequacy can be simply tested.

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I think the Ontario Court of Appeal went too far, when dealing with the standard of disclosure of risks, in saying, as it did in the passage of its reasons just quoted, that “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”. Of course, it can be tested by expert medical evidence but that too is not determinative. The patient may have expressed certain concerns to the doctor and the latter is obliged to meet them in a reasonable way. What the doctor knows or should know that the particular patient deems relevant to a decision whether to undergo prescribed treatment goes equally to his duty of disclosure as do the material risks recognized as a matter of required medical knowledge.

It is important to examine this issue in greater detail. The Ontario Court of Appeal appears to have adopted a professional medical standard, not only for determining what are the material risks that should be disclosed but also, and concurrently, for determining whether there has been a breach of the duty of disclosure. This was also the approach of the trial judge, notwithstanding that on the facts he found against the defendant. (Indeed, the trial judge seems also to have overstated the duty of disclosure. The Court of Appeal, in contrast, seems to have understated it. Generally, the failure to mention statistics should not affect the duty to inform nor be a factor in deciding whether the duty has been breached.) To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone. The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by

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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. It is, of course, possible that a particular patient may waive aside any question of risks and be quite prepared to submit to the surgery or treatment, whatever they be. Such a situation presents no difficulty. 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.

A useful summary of issues on which medical evidence in non-disclosure cases remains significant is found in a comment, “New Trends in Informed Consent?” (1975), 54 Neb. L. Rev. 66, at pp. 90-91, where, after noting that medical evidence should not control determination of the breach of the standard of care, it continued, as follows (referring to Canterbury v. Spence, infra):

Even Canterbury specifically notes that expert testimony will still be required, in all but the clearest instances, to establish (1) risks inherent in a given procedure or treatment, (2) the consequences of leaving the ailment untreated, (3) alternative means of treatment and their risks, and (4) the cause of the injury suffered by the plaintiff-patient. Finally, if the defendant-physician claims a privilege, expert testimony is needed to show the existence of (1) an emergency which would eliminate the need for obtaining consent, and (2) the impact upon the patient of risk disclosure where a full disclosure appears medically unwarranted.

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The learned Justice of Appeal also was of the view that the reference to statistics, and the positing of a requirement that the defendant should have put before the patient what he said in evidence as to the percentage likelihood of a stroke or death, resulted in an improper finding on causation. I quote a portion of his reasons in this connection, as follows:

The statistics would have to be explained to the patient and then discussed in relation to his position if he did not have the surgery. Would the view of the learned trial judge have been any different if resort had been made to Dr. Elgie’s statistics or to the statistics quoted by both doctors? Does this not simply reveal the confusion that probably would result to a patient who is attempting to reconcile the doctor’s recommendation to proceed with an unexplained gross figure of 14% risk?

I think the learned trial judge has failed to appreciate the approach taken by both of Dr. Elgie and Dr. Schacter, which was to present a comprehensive statement of the position to the patient.

Brooke J.A. referred to portions of the evidence given by Dr. Elgie and by Dr. Schacter and summarized it in these given words:

As I understand the evidence of Dr. Elgie it is an explanation to the patient that he runs a greater risk of death or a stroke in the present year if he does not have the surgery than he would run if he were to have it and that the risk would continue in that way. Dr. Schacter’s evidence is to the same effect. It is my opinion the evidence did not justify the use of the proposition by which the trial judge decided the plaintiffs case and determined whether the defendant’s conduct was negligence, and if so, if the negligence caused the plaintiffs loss and damage.

Judgment in this type of case is difficult because it is really based on consideration of hindsight.

He proceeded then to consider a line of American cases on causation, including the leading case of Canterbury v. Spence[10], certiorari denied[11], Cobbs v. Grant[12] and Barnette v. Potenza[13] and commented on them as follows:

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In actions for negligence our courts have adopted a subjective test. Referring to the above cases I must not be taken as adopting or suggesting the adoption of the doctrine of informed consent as it has developed in some of the courts of the United States of America. The references made at this point are for the value of the discussion on the question of proof. The experience above reported should not be ignored as those courts were driven to this conclusion because justice could not be done between the parties other than by such an objective approach. It is never too late in the day to change. I think a safe practice here is to test the plaintiff’s case objectively before proceeding to consider it subjectively.

Was the defendant’s negligence the cause of the plaintiff’s loss? If he is able to show that he has suffered loss as a result of the recommended treatment and he (or at least a reasonable man in his position) would not have consented if the required disclosure was made, damages may be awarded. In my respectful view, the learned trial judge really did not deal with this issue properly.

It was on this ground that he ordered a new trial.

If Canadian case law has so far proceeded on a subjective test of causation, it is in courts other than this one that such an approach has been taken: see Koehler et al. v. Cook[14], at p. 767; Kelly v. Hazlett, supra, at p. 320. The matter is res integra here. An alternative to the subjective test is an objective one, that is, what would a reasonable person in the patient’s position have done if there had been proper disclosure of attendant risks. The case for the objective standard has been tersely put in the following passage from a comment in (1973), 48 N.Y.U.L. Rev. 548, at p. 550, entitled “Informed Consent—A Proposed Standard for Medical Disclosure”:

Since proximate causation exists only if disclosure would have resulted in the patient’s foregoing the proposed treatment, a standard must be developed to determine whether the patient would have decided against the treatment had he been informed of its risks. Two possible standards exist: whether, if informed, the particular patient would have foregone treatment (subjec-

[Page 898]

tive view); or whether the average prudent person in plaintiff’s position, informed of all material risks, would have foregone treatment (objective view). The objective standard is preferable, since the subjective standard has a gross defect: it depends on the plaintiff’s testimony as to his state of mind, thereby exposing the physician to the patient’s hindsight and bitterness.

However, a vexing problem raised by the objective standard is whether causation could ever be established if the surgeon has recommended surgery which is warranted by the patient’s condition. Can it be said that a reasonable person in the patient’s position, to whom proper disclosure of attendant risks has been made, would decide against the surgery, that is, against the surgeon’s recommendation that it be undergone? The objective standard of what a reasonable person in the patient’s position would do would seem to put a premium on the surgeon’s assessment of the relative need for the surgery and on supporting medical evidence of that need. Could it be reasonably refused? Brook J.A. appeared to be sensitive to this problem by suggesting a combined objective-subjective test.

I doubt that this will solve the problem. It could hardly be expected that the patient who is suing would admit that he would have agreed to have the surgery, even knowing all the accompanying risks. His suit would indicate that, having suffered serious disablement because of the surgery, he is convinced that he would not have permitted it if there had been proper disclosure of the risks, balanced by the risks of refusing the surgery. Yet, to apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.

I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material. And so too are any special considerations affecting the particular patient. For exam-

[Page 899]

ple, the patient may have asked specific questions which were either brushed aside or were not fully answered or were answered wrongly. In the present case, the anticipation of a full pension would be a special consideration, and, while it would have to be viewed objectively, it emerges from the patient’s particular circumstances. So too, other aspects of the objective standard would have to be geared to what the average prudent person, the reasonable person in the patient’s particular position, would agree to or not agree to, if all material and special risks of going ahead with the surgery or foregoing it were made known to him. Far from making the patient’s own testimony irrelevant, it is essential to his case that he put his own position forward.

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

[Page 900]

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.

4. The Evidence

I am driven to look at the evidence by reason of the different views taken of it at trial and on appeal. Moreover, the view taken by the majority of the Court of Appeal is indicative more of an exoneration of the defendant than as supportive of the order made for a new trial. So far as the duty of disclosure and its alleged breach are concerned, the crucial evidence is not so much that of Dr. Elgie and Dr. Schacter or that of Dr. Lougheed but, rather, the evidence of the plaintiff and that of the defendant as it relates to what the defendant told the plaintiff and what concerns, if any, the plaintiff communicated to the defendant before the surgery was performed.

The plaintiff began to have severe headaches in the spring of 1969. His wife’s doctor was Dr. Szabo who, like the plaintiff, was of Hungarian extraction. The plaintiff went to see Dr. Szabo who examined him and found he had high blood pressure and gave him certain pills to take. There was no improvement and Dr. Szabo suggested that the plaintiff go into hospital for a complete checkup. While there, it was discovered that he also had diabetes. After a stay in hospital he went back to work. However, his headaches persisted and on Dr. Szabo’s recommendation he went back into hospital in February, 1970. The plaintiff came under the care not only of Dr. Szabo, but also of a specialist, Dr. Orr, who had diagnosed the diabetes during the plaintiff’s previous stay in hospital. He

[Page 901]

underwent more tests and was put on a strict diet and his headaches abated. His continuing high blood pressure caused anxiety to the doctors and Dr. Hughes, the defendant, was brought in by Dr. Orr with Dr. Szabo’s concurrence.

The defendant first saw the plaintiff in hospital on March 6, 1970. The plaintiff’s headaches had come back and, on examining him, Dr. Hughes said the indications were that there was a blockage in the left arteries at his neck. On March 10, 1970, an arteriogram was taken and Dr. Hughes verified that there was a narrowing of the left carotid artery to such an extent as to permit only about fifteen per cent of the normal blood flow through the artery, which leads to the brain. Dr. Hughes advised an operation and the plaintiff signed a consent form a few days before the operation was performed. It had been postponed for several days to meet the plaintiff’s convenience to enable him to see his lawyer about his house mortgage.

I reproduce now the plaintiff’s evidence as to what information Dr. Hughes gave him about the operation prior to its performance. The relevant questions and answers on the examination in chief begin at p. 117 of volume 1 of the case on appeal:

Q. You told us Dr. Hughes told you he had to do an operation to cut out the bad part?

A. Yes.

Q. What else at that time did Dr. Hughes say to you and what did you say to him?

A. Well, the way he was telling me this is something in the beginning and he also told me about this much he has to cut out of here (indicating).

Q. You are indicating about three-quarters of an inch.

HIS LORDSHIP: About three-quarters of an inch?

A. I guess so.

Q. As a tool and die maker you would know?

A. This wasn’t a thing you put a measurement on. To give an idea, I put it like this (indicating).

[Page 902]

MR. HOWIE: What else did Dr. Hughes say to you and what did you say to him?

A. He said, “The artery is like a rubber hose. You have to cut it out, pull it together and there is a little operation, and you are a strong, young, healthy man, and in 10 days you are able to go back to work.”

Q. What did you say?

A. I was thinking, “Only it is about 10 days to go to Easter and if it is like that I would be able to be with my family at Eastertime” and I said, “Go ahead and do it”.

Q. Where was this?

A. In the room where I was in hospital.

Q. Dr. Hughes came to your room?

A. Yes.

Q. Was there anyone else in the room?

A. Probably a roommate because there was 2 beds in that room.

Q. Is that the end of the conversation or was there anything else?

A. Right there there wasn’t anything else.

Q. You wanted to talk to someone else about it?

A. It was like that. We were talking about it with my roommate and at the same time his wife was there for a visit and she was asking me what my problem was and I told her just a headache with bending down that it starts and she says, “I have the same problem”. She said, “I have the same problem more than 20 years with that kind of headache you have. They want to operate on me and I was afraid to go through with it. I didn’t go for the operation.” She also was telling me in that case there had to be replaced a plastic tube for the artery. I was thinking about it and maybe I thought I would get in touch with Dr. Hughes and ask him about it. I was asking for him through the head nurse and somehow I was able to see Dr. Hughes again.

Q. Did you talk to Dr. Szabo about it at some time?

A. Dr. Szabo was every day there and I was asking him a question about that and he said, “Look, I don’t know much about it. If I knew that I would be a specialist myself. You are in good hands with Dr. Hughes and do whatever he tells you.”

Q. Do you remember any other conversation at that time with Dr. Szabo about the operation or what was involved or any risks of the operation?

[Page 903]

A. There wasn’t anything mentioned about any kind of risk.

Q. You have told us you wanted to see Dr. Hughes again to talk about it?

A. Yes.

Q. Did Dr. Hughes come back to your room?

A. Yes, he did once and he said, “That’s a different case, because that lady is not a young person like you.” It was far away gone already with her and mine was just in the beginning. He said, “You don’t have to worry about that. There is no plastic tube which would have to be replaced in that cut.”

Q. What discussions did you have about any risks of the operation?

A. Honestly, I didn’t have any doubt about it. I didn’t even think there was going to be any risk. Somehow I don’t have anything to do with doctors and operations. I didn’t even think about it.

Q. Did he talk to you about what would happen if you didn’t have the operation?

A. Yes, he said, “It is up to you if you want to have it or not. You can live a few years. You can live about 7 or 10 years or longer. One of these days once you are going to fall on your nose, and that’s it. If you are going to do it now in the beginning you are not going to have any problem later.”

Q. Did Dr. Hughes say anything else about any risks of the operation?

A. He didn’t mention anything.

At pp. 121 and 124 there are the following questions and answers:

Q. If you had known and if you had been told that there was risk of having a stroke as a result of this operation, what would your decision have been about having the operation?

A. May I say something? For one thing I didn’t even know what a stroke is. Secondly, if I have to choose for a short life and live like a normal person or life [sic] the rest of it like a cripple I would have chosen to live a short life and be a normal person. I wouldn’t drag myself around the way I am doing now.

[Page 904]

Q. Was there any other conversation with Dr. Hughes before the operation took place on the Wednesday?

A. Honestly I can’t recall anything.

Following the operation, which resulted in the paralysis suffered by the plaintiff, he saw Dr. Hughes on two occasions, as the following excerpts from his evidence in chief show:

Q. You say you saw Dr. Hughes after the operation, a week or so after the operation?

A. First I was asking for him and I was trying to tell my wife that I wanted to see the doctor who operated on me and she understood and we were both asking for him. The head nurse came in and said, “He isn’t back from his holiday and as soon as he is back, we will get in contact with him.”

Q. Did Dr. Hughes eventually come in to see you?

A. Yes, I was in the wheelchair out of the room and I saw him passing by and I called him and he came there and I said, “Look at me, how I am,” and he said, “Nothing to worry about. It is all going to come back.” He looked at my hand and tried to open my fingers. He said, “Try to move it,” and there was no movement. He said, “Don’t worry, it will all come back.” He was probably trying to cheer me up.

Q. Did you see Dr. Hughes again?

A. I saw him once much later after they transferred me to the Shedoke Rehabilitation Centre. This was the first week and after that they let me home. Someone picked me up and delivered me home. This was a Saturday or Sunday. I don’t know exactly the date. Sunday night I have to be back at Shedoke again. I was so desperate I wanted to see Dr. Hughes very much and I said to my wife, “Take me to his office and I want to speak to him about it. What is going to happen with me.” I didn’t get back to the hospital. I went to his office, and without any appointment, and I said, “I have to speak with him,” [sic] Then I saw him and I asked him how and what and how come I am lined up like a cripple.

Q. What did Dr. Hughes say?

A. Dr. Hughes said, “This just didn’t work out.” He said, “I’m sorry,”. [sic] He also put the stethescope [sic] on and saying there is still not everything all right. He still heard a movement. He said, “I’m sorry, this didn’t work out,” and I said, “How come it didn’t work out?” and he said,

[Page 905]

“Look, you’ve been working at Ford Motor Company and many times you try to do a job and for some reason it just doesn’t work out. A screw goes the other way in and they have to replace it or do something about it.” I said, “That’s fine. Let’s do it with me, too. Go all over again and put me on the table and make an operation and get it done, whatever you missed, whatever went wrong with your work.” He said, “No, I’m not going to do that. If I am doing it, you may end up dead. I’m not going to touch you any more.” That’s what he said.

Q. Did you discuss with him anything about telling you that this might occur?

A. I said, “You put it to me so simply like there is nothing to it,” and he said, “Yes, that is what I thought first. There was another blockage, not just there on your neck, but a small blockage up in your brain and I couldn’t get to it and that caused the problem,” he said. He said, “I wouldn’t touch this. I am not able to get to that.” I said, “Why didn’t you tell me the first time there isn’t this one blockage but another one that you couldn’t touch?” I really didn’t get an answer for that. My wife was telling him and asking him questions, too, and her question was, “Why didn’t you tell him about the risk he would be taking on the operation?” He answered my wife, “I wouldn’t tell none of my patients the risk because this would scare him, or something like that.”

I come now to the cross-examination of the plaintiff on the matter of the information or disclosure given or made to him by Dr. Hughes. The transcript of evidence, volume 1, beginning at p. 156 is as follows, starting with a reference to the arteriogram:

Q. He told you that he was going to perform a test that involved putting some dye into your veins?

A. Yes.

Q. He explained what he was going to do?

A. Yes.

Q. You were content because you felt Dr. Hughes knew what he was doing to let him go ahead with it?

A. I trust him all the way through.

[Page 906]

Q. A day or so after that time you had the test?

A. Yes.

Q. You had another discussion with Dr. Hughes?

A. Yes.

Q. At that time Dr. Hughes told you that you had a narrowing in the artery on the left side of your neck?

A. Yes.

Q. Did you understand what that was?

A. In a way I wasn’t too sure about it because this was something new for me. I was thinking about it and asking him, and also the patient who was in, something about it. After the doctor goes everyone is interested in what is going on and what happens. We were talking about it.

Q. When Dr. Hughes told you you had a narrowing in the artery in your neck, did you understand what he was saying?

A. I understand the artery. I don’t know how this comes in and what is the cause. I didn’t have the slightest idea, what it is, because this was something new what I heard from him.

Q. Did he use any medical term or just tell you you had a narrowing?

A. I think he tried to tell me and this is too much for me to understand.

Q. He tried to and because of the English problem you were not able to understand?

A. I couldn’t understand.

Q. I take it you were content to take his advice?

A. Certainly.

Q. Did he tell you that the amount of blood that was going through your artery had diminished or had fallen away and there wasn’t as much blood going through as should be going through?

A. Yes, and he said on the left side in my brain I have a plug and that caused all my problems. That is what he told me.

Q. High blood pressure. You didn’t understand, I take it, exactly what he was getting at?

A. Honestly, I thought only that the blood I am getting in my brain caused my headache and the dizziness, and everything else.

Q. That is what you thought?

A. Yes.

Q. I take it you didn’t clearly understand?

[Page 907]

A. No, I wasn’t sure about it.

Q. You also had some discussions with Dr. Hughes as to what he would do to help the blood flow in your neck?

A. That is correct.

Q. I take it from what you told us yesterday that he suggested there was an operation that he could perform?

A. Yes.

Q. He also suggested to you that your problem might become worse or more difficult if you waited rather than having the operation done now?

A. That is right.

Q. Was that all said at the one time after the tests? Did he go through all of that?

A. This was when he saw all the results of the tests and he was telling me all that.

Q. I take is that, as you have described, after that time, after the discussion with Dr. Hughes, you got talking with other patients in the room?

A. Yes.

Q. You talked to Dr. Hughes again?

A. I asked him to talk it over.

Q. When you talked to him again you had some concern as to what was involved in the surgery?

A. Yes.

Q. What did you ask Dr. Hughes.

A. Honestly, the tube for that woman was mentioned to him.

Q. He said he didn’t need to use that?

A. Because it was just in the beginning.

Q. Did he mention another patient across the hall that he had operated on?

A. A similar older person and he had to do something like that on him and I don’t know where he had to do it. I don’t think it was the same case as mine. He has not any doubt about it, mine will go honestly. He said, “You are young and strong and it is just in the beginning”.

Q. What Dr. Hughes told you was that your problems would be less if you had the surgery done?

A. Right away.

Q. Than if you waited and he told you what might happen if you waited?

[Page 908]

A. If I would wait a couple of years more I may be in the shoes as the other person he was worried about.

Q. What had happened to that other person?

A. Honestly, I never saw him or was talking with that person. I saw him from a far distance. I never spoke to him about it.

Q. It went further than that, didn’t it. Dr. Hughes told you you might fall down, that you might pass out, or have a headache?

HIS LORDSHIP: Ask those singly.

MR. CAMPBELL: You told us yesterday that Dr. Hughes had told you something about what might happen if you waited and you said you might fall on your nose?

A. Yes, if I let it go on for years, then one of these days it is going to be so bad that I just going to pass out, fall down, and I would lay there and I would be dead after that. It is not something tomorrow or next day or in a month if I let it go on.

Q. At some point in time that is what was going to happen?

A. Yes.

Q. He explained the risk?

A. It is a risk to wait a few more years, for 5 or 7 years. We were talking about it.

Q. Did you ask him anything else about the operation, as to how he was going to do it or what was going to be done?

A. Honestly, I didn’t ask him. He was pointing it out where he had the operation. He was pointing it out with his finger, right there, he said (indicating).

Q. Did he tell you what he was going to do?

A. He said this is the artery and this is the pluggage and he has to remove the bad part of the artery. The only thing what I don’t like, he didn’t tell me a second pluggage was in my brain somewhere. He just talked about only this one on which he would operate. I said, “Dr. Hughes, why didn’t you tell me about the other one, too” because he said, “That is something I couldn’t touch,” and that has caused the problem.

Q. You understood that you had that at the time?

A. I didn’t know before the operation. He was telling me this only after I was paralyzed.

[Page 909]

Q. He hadn’t told you before the operation that you had anything in your brain?

A. He didn’t tell me anything about that.

Q. Are you saying you had it there at that time?

A. He told me so. When he was certain after the tests, he said the pluggage was here and he saw already the other one too, but he didn’t tell me about it.

Q. How do you know that he saw that at that time?

A. He said it himself in his office after I saw him.

Q. Did he saw [sic] it was there from the beginning?

A. Yes, it was already there. He saw it on the test when he called [sic] my brain.

…

Q. When Dr. Hughes was telling you about what he was going to do in the operation and why he thought you should have an operation, did you understand everything that he was saying to you?

A. I understand the reason why he wants to do it and I agree also if he do it in time there may not be any problems later on. I was willing to go through with it.

Q. Did you have any discussions with Dr. Hughes about the possibility of being paralyzed?

A. No. That word paralyzed or stroke was never in my mind and I didn’t know anything about it before I was already done and saw people with that problem.

Q. Did you know what the word meant?

A. This time I didn’t know.

Q. You don’t know whether it was used by Dr. Hughes or not?

A. I didn’t hear from anybody. Not from Dr. Hughes or Dr. Szabo, paralyzing and stroke never occurred. No one mentioned it to me.

Q. You didn’t understand what they meant?

A. Even so, I didn’t understand because I don’t have anything to do with it.

Q. Whatever they said along those lines you would not have understood?

A. They personally did not mention it to me, even the words they didn’t mention. They didn’t use words like paralyzing or stroke to me. The only concern was to get my blood pressure down to normal and

[Page 910]

that is why they got pills and if the pills didn’t help they would have to find out another way.

…

Q. Did you have any discussions with him about the operation?

A. Not with Dr. Orr.

Q. What about Dr. Szabo?

A. He was the one. I asked him in bold language in mine and in English and with Dr. Szabo I understand enough English. I said, “If you don’t know how to pronounce it in Hungarian try to explain it to me in English”. His answer was, “You are in good hands and if I would know the answer for it I would be a specialist myself.”

Q. I take it you can’t recall anything else that Dr. Szabo said?

A. Nothing else.

There is one piece of evidence from the patient’s wife, when examined in chief, which supports what he himself said in reference to a visit made to the defendant’s office after the operation. The transcript, volume 2 of the case, at pp. 314-15 shows the following:

Q. You say you spoke to Dr. Hughes about 2 months after the operation?

A. Yes.

Q. Whereabouts was that conversation?

A. In his office.

Q. Who was present?

A. Only my husband and me and him. I took my husband.

Q. The three of you?

A. Yes.

Q. Tell me about that conversation?

A. Well, it was a long one. It was mostly like we wanted to find out what was going on, what is this thing we are into because we had no idea what we were into. He said that the operation didn’t work out, that he promised him that he will have everything back in his arm and right side, even though he won’t be painting or drawing like he used to, and that is very painful for him. My husband wanted him to do another operation on him to fix him up and he said he can’t do it because there is another blockage in the back of the head. He showed it. There is a tiny blockage. I asked him, “Why didn’t you warn my husband because he

[Page 911]

would rather have died than take the operation which cripples him” and he said, “Mrs. Reibl, I never tell these things to my patients.”

Q. Did he say why not?

A. No, he didn’t. Maybe; I don’t know. It was a nightmare.

Q. Do you remember anything else with respect to the conversation which you had with Dr. Hughes?

A. He said something about my husband’s work; “When you work you do some mistakes, too, don’t you, which can’t be corrected?” My husband said, “If I have a screw in wrong I take it out and put it right. You do the same,” and he said he can’t.

There was no cross-examination on this evidence.

Counsel for the plaintiff completed his case, having called Dr. Schacter and Dr. Elgie and other witnesses, by reading into the record portions of the examination for discovery of the defendant. I refer to the transcript of evidence, volume 2, at pp. 325 et seq.:

…

“Q. All right. Now this lesion you discovered through the arteriogram would you describe it as asymptomatic?

A. Yes, I would.

Q. What do you mean by asymptomatic?

A. Well, not causing any detectable neurological disfunction or abnormality.”

…

“Q. And how many have you carried out or performed before you performed this one on the plaintiff, John Reibl?

A. That is, up to 1970?

Q. Yes.

A. Somewhere around 60 or 70.

Q. And how many of those have been asymptomatic patients?

A. Oh, 4 or 5, I think.

Q. Now of those 60 or 70 that you carried out, what incidents of stroke have there been?

A. At the time of or during surgery or post-operatively?

Q. During surgery?

[Page 912]

A. Well, it’s hard to tell really whether anything happens at the time of the actual surgery or whether it’s some phase in the next hour or two during a recovery period, they’re still under the anaesthetic, and so on, but I think it would be somewhere 10 to 15 per cent. Of course, this takes in a long period of time and we were operating originally on patients who had massive strokes that we learned later not to be operating on, so statistics generally improve as the years go on.”

…

“Q. The 4 or 5 asymptomatic patients, had any of them suffered a stroke?

A. Yes.

Q. What number?

A. Just the one, just one.

Q. You’re not including Mr. Reibl in that?

A. No, one before that.

Q. And of the 60 or 70 that you performed how many died from the surgery?

A. Well, again a lot of these were early. I would say probably it would be 8 to 9, 8 to 10, I’ll say.

Q. All right. And then was there any medical data or writings available to you as of March, 1970, to indicate what incidents of risk there was generally in carrying out this type of surgical procedure?

A. At that time the mortality rate was getting pretty low. It was less than 4 per cent. The morbidity rate was still around 10 per cent.

Q. By morbidity you mean those in which a stroke occurred?

A. Some complication of operation or immediate problem.”

…

“Q. Well, then, at that time what was your opinion as to the risk involved in this form of surgery?

A. I felt at that time the, perhaps I can put it this way, that the risk of a patient becoming paralyzed was greater without the surgery than it was with surgery and this is actually the way it was presented to the patient.

Q. Well, leaving out the risk to himself if he did not have the surgery, what risk did you see was attendant on the surgery itself?

A. Well, the possibility of a stroke.

[Page 913]

Q. And what did you think in terms of percentage that risk was?

A. In my own mind, and I don’t believe I gave him any specific figure other than the fact that he was better one way than the other, around the 10 to 15 per cent.”

Going now, My Lord, to page 28, questions 249 to 252:

“Q. Doctor, we cannot ask you that at the moment. You finished the operation. When did you next see the patient?

A. It was within about an hour in the intensive care unit. Again, I keep these people in the intensive care unit for the first night and I was making some rounds after we finished the operation and then it would be about 4:30 I think. When I went back to the intensive care unit and he was starting to come around at that time.

Q. Was there any symptoms then of——

A. Yes, the girls had just finished checking him as a matter of fact when I went into the intensive care unit and they felt that his grip, the hand grip on the right side was somewhat weak.

Q. Yes, and what did you do?

A. So I examined him again at that time and his right arm was weak and I felt that his right leg was showing some minimal weakness at that time.

Q. He is still unconscious at this point?

A. He was starting to rouse. I wouldn’t say he was actually conscious, perhaps, but he was certainly starting to make sounds and talk sort of thing.”

…

“Q. It was apparent then that he suffered a stroke?

A. It appeared that he was actually having one.

Q. When you saw him?

A. He was into a stroke evolution, yes.”

…

“Q. So then, in effect, he had paralysis of the right side?

A. That’s correct.

Q. What’s the medical term for that?

[Page 914]

A. Hemiplegia.”

…

“Q. Did you ever have any further conversation with the plaintiff Mr. Reibl after your last examination of him while he was in the hospital in 1970?

A. Yes, he came into my office on May 4th, 1970…

Q. Can you tell me what was said as best as you can recall?

A. Well, he was concerned really at that time that he didn’t feel that we had told him that this possibility of weakness might happen after the operation. It seemed to be almost fixed with him.”

…

“Q. Did you make any notes of the conversation this time?

A. I have some notes here. I don’t think there is anything specifically about what he said but I have some notes about what he did, tool and die maker. He couldn’t work in Canada as a tool and die maker because of the language problem and again the other thing that was really quite upsetting to him was that he had been working at Ford for 8½ years and it required something like 10 years before he could get on a pension program and this, of course, bothered him quite a bit. He had been unhappy with the rehabilitation. He mentioned this. He didn’t think they were doing enough for him at Shedoke Centre [a rehabilitation centre] and I have a note that he was not encouraged, meaning more or less depressed. He says he will probably never get back to Ford.”

…

“Q. Dr. Hughes, the surgery that you performed, did you consider it in any way an emergency form of surgery; that is, to meet a condition of emergency that then existed?

A. No.”

The defendant, Dr. Hughes, examined in chief, spoke of the detection of a bruit, that is, a sound of noise, in the plaintiff’s left carotid artery as a result of an initial examination. Then followed a reference to the arteriogram which disclosed a narrowing of the artery, with a consequent substantial decrease of the flow of blood. His evidence in chief then continued as follows, beginning at p. 334 of volume 2 of the case on appeal:

[Page 915]

Q. Having visualized that through the process of the arteriogram, did you have an opinion as to what was the appropriate action to take?

A. Yes, I felt that even though this narrowing of the artery was not causing any obvious neurological deficit, or any neurological problems at that particular time, that he probably should have this removed to prevent a stroke some time in the future.

Q. In your opinion, and let’s talk about it in terms of 1970, what did the future hold for him if the surgery was not undertaken as opposed to the risk if it was?

A. I think I can say that at that time we had some definite evidence that leaving an artery in this condition alone would definitely have an increased risk of a stroke in the next several years.

Q. What were you able to determine about his vascular system and his condition in that respect?

A. There was a small plaque higher up in the artery on the same side. There was another very small one on the right side just at the level of the division of the main artery.

Q. Did he show any neurological deficits at all?

A. No, he didn’t. I believe there was a brain wave test taken at the time he was in hospital previously which was within normal limits.

Q. Did you discuss with the plaintiff having the operation?

A. Yes, I did.

Q. The operation being the one which was ultimately undertaken?

A. That is correct.

Q. An endarterectomy?

A. Yes.

Q. When did you discuss his undergoing the operation and what did you say to him?

A. I think it was the next day after the arteriogram. At that time we were doing the angiograms quite often in the early afternoon so they were still fairly drowsy the rest of the afternoon and you didn’t have a chance to talk to them about it. So it is the next day you talk to the patient.

Q. This is 6 years ago and you don’t have a note of it?

A. No.

Q. What did you say?

[Page 916]

A. I talked to him about the fact that there was a narrowing in the artery, that only 10 or 15 per cent of the blood was getting through, and I felt the chances of preventing a stroke were better by having the operation than if we left him alone, in which case he might have a stroke within a few years.

Q. Did you use any statistics at all?

A. I didn’t use any actual figures. I used my knowledge that there was a trend in these directions.

Q. In that first conversation did he have any questions or queries at all?

A. No, he didn’t.

Q. Did he give you an answer at that time?

A. I believe he said he wanted to have something done. I think he was very concerned about his headaches at that time and I feel that he wanted something done to try to improve everything, not just this narrowing or stroke problem. He said, “Go ahead and make the arrangements”.

Q. Did you indicate that his headaches were causally connected at all to the bruit?

A. I indicated to him, and he had asked me about this, and I’m not sure whether it was that talk or subsequently again, but I did tell him I didn’t feel the headaches would necessarily be improved. I told him I didn’t think they would be improved from the operation, as a matter of fact.

Q. Did you have more than one conversation with him on this subject of what the future held for him and explaining the operation to him?

A. Yes.

Q. How many times did you speak to him?

A. Two or three times after that first talk. Probably two more times after the first time I talked to him about the operation.

Q. Over what period of time?

A. Over another 4 or 5 days.

Q. If you can sort out the different conversations and when you said what day or when looking back over this span of time, I ask you generally what were the contents of all the discussions taken together?

A. At one stage I know Dr. Szabo was with me and we talked to the patient about this and Dr. Szabo explained to him, as best he could in Hungarian, which I don’t understand; at any rate, he went

[Page 917]

over the explanation of the operation with the patient and I think tried to relate my feeling that---

MR. HOWIE: We are in a difficult area and I appreciate what the doctor is trying to do. If he didn’t understand what Dr. Szabo said I would prefer to have Dr. Szabo say it:

HIS LORDSHIP: Are you going to call him?

MR. LAIDLAW: I expect we will.

HIS LORDSHIP: Under those circumstances...

MR. LAIDLAW: Let’s stick to what I can do with this doctor.

HIS LORDSHIP: He is listening to someone speaking in Hungarian?

A. Yes.

MR. LAIDLAW: First of all, were the mechanics of the operation ever explained to the plaintiff? Did you ever explain the mechanics?

A. The incision-type of thing?

Q. Even in general terms?

A. It was to remove this plug or blockage of the artery.

Q. And Dr. Szabo was present on one occasion, had you had a discussion with Dr. Szabo in his presence as to what was going to go on?

A. I talked to Dr. Szabo previously and I don’t know whether it was coincidence or not, but we happened to see the patient at the same time.

HIS LORDSHIP: Did you explain to the patient in Dr. Szabo’s presence and Dr. Szabo act as interpreter?

A. That is correct.

MR. LAIDLAW: What did you say to the plaintiff at the time Szabo was purporting to translate?

A. That we felt in the best interests of the patient the artery should be opened up, the blood supply restored, and then again the question came up of, “What are the chances of something happening to me, paralysis?” I am sure he used that word. I said I just felt the chances of having a stroke by not operating were better than if we did operate on him.

Q. Did he ask whether he might suffer one, in any event, as a result of the operation?

A. Yes, that is what he was asking.

Q. What did you tell him?

MR. HOWIE: That is a leading and important question.

[Page 918]

MR. LAIDLAW: What did you tell him?

HIS LORDSHIP: Don’t lead Mr. Laidlaw, please.

MR. LAIDLAW: What did you tell him?

A. I told him again that the chances were still better of not having a stroke with the operation than they were leaving it alone.

Q. Did he have any other questions or queries at all prior to the operation concerning it?

A. I don’t remember anything. He seemed to want to really get on and get this operated on and get straightened around.

The defendant went to see the plaintiff in the recovery room after the operation and noticed some weakness in the right arm. The patient was transferred to intensive care and his condition changed for the worse. Dr. Hughes was called back to see him. The doctor’s evidence was the following:

Q. Was there a difference between his condition that you had seen in the recovery room?

A. Yes.

Q. The time span was about what?

A. Perhaps another half hour after he was transferred from recovery room to the intensive care unit, half an hour to three-quarters of an hour.

Q. What opinion did you hold when you saw him in the intensive care unit?

A. I felt that he was either having a stroke, and I couldn’t be sure whether he had flipped off a piece of blood clot, embolism, or was starting to occlude his carotid artery. The fact that he had weakness of the right arm suggested to me that it was a small piece of clot that had flipped up from the suture line area of the operation. Because of that I felt that there was a fairly good chance we could leave well enough alone and not do anything at that particular time. When he changed for the worse, in some of the other vital signs—he was getting a brain swelling at this time—I felt at that stage we should not re-operate on him because of the very high chance of having mortality.

Q. From what cause?

A. Just from bleeding in the brain due to the fact that any area of infarction, whether from an embolus or occlusion of the artery of the neck, vascular insufficiency, does cause softening of the brain which causes weakening; the blood vessels are

[Page 919]

weaker, and if the blood flow is restored the extra pressure will often cause a cerebral haemorrhage.

Dr Hughes said also that within a short time, about fifteen minutes or so, and on his own observation, the plaintiff changed from being in a hemiparetic condition to a hemiplegic condition. It would be dangerous he said to re-operate on such a patient, the mortality rate being from twenty to sixty per cent. Further evidence in chief touched upon post-operative care which, as I noted early in these reasons, was not an issue in this Court.

Finally, there is the cross-examination of the defendant, which I wish to reproduce in its portions relevant to the disclosure of the risks of having or not having the recommended operation. The matter is considered in volume 2 of the case on appeal, beginning at p. 361:

Q. I want to go to the issue of risk. First of all, would you agree with me that in 1970 you were aware of the fact that there were specific risks attendant upon the surgery that you were recommending to Mr. Reibl?

A. Yes, there were some risks. They were really quite minimal actually.

Q. On your examination for discovery that I read in yesterday, you indicated that it was something less than 4 per cent chance of mortality and something in the order of 10 per cent with respect to morbidity?

A. Yes, I think it probably was even lower than that.

Q. In 1973 you felt it was what I said; is that correct?

A. On the discovery?

Q. Yes?

A. Yes.

Q. Do you agree with me that everyone of your patients, and I do not care the operative procedure you might recommend, is entitled to give an informed consent; is that fair?

A. Yes.

Q. When we speak of “informed” we mean that the patient should be sufficiently aware of the risks and of the nature of the surgery in order to be able to decide to have it or not have it?

A. That is correct.

[Page 920]

Q. Would you agree with me that that is the standard that every good neurosurgeon should operate under in terms of obtaining or not obtaining the patient’s consent?

A. Yes.

Q. I want to try and make sure we understand each other. There are risks to any surgery?

A. That is correct.

Q. When we speak of the ordinary risks of surgery we refer to things like the surgeon’s knife slipping and causing injury, an anaesthetic that does not work properly, a failure on the part of the anaesthetist, Any one of the dozen things that are ordinarily attendant upon surgery?

A. That is correct.

Q. When you get down to specific procedures then apart from, in effect, letting the patient know that all surgery has some risk, which most people should understand in any event, when you come down to specific procedures would you agree with me that you are under an obligation to tell your patient about specific risks?

A. Yes, it might vary a bit with the patient but generally, yes.

Q. Why do you say it would vary a bit with the patient?

A. Some patients are certainly very nervous, anxious.

Q. Frightened?

A. Frightened, yes. Others you start to explain the situation to them and they say, “I don’t want to know anything about it. Let’s get on and get the job done.”

Q. You have had the experience very often where you have explained the specific risks attendant upon a particular procedure that you feel should be done for the patient’s benefit and the patient has refused the surgery?

A. Yes.

Q. Too nervous or too scared, or whatever it is?

A. Yes.

Q. Even in situations where they have heard people have had it and are paralyzed back in Italy, out east, or somewhere else?

A. Yes.

Q. In this case it was your desire on behalf of your patient to help him?

[Page 921]

A. Yes.

Q. Therefore, you were anxious that he should have the surgery in this case?

A. I felt that he would definitely benefit from it, yes.

Q. I am going to suggest to you that in this case you never did specifically tell your patient of the specific risks of this surgery?

A. I didn’t even have to because the patient asked me this himself.

Q. In other words what he said to you was, and correct me if I am wrong, “Is there any chance of my being paralyzed?” or words to that effect?

A. Yes, that is correct.

Q. In other words, he raised the issue with you?

A. Yes.

Q. Did you then tell him what his chances were of being paralyzed immediately or within a day or two as a result of this surgery?

A. No, I did not tell him any specific time after surgery. I told him that the chances of being paralyzed if he did not have the operation were greater—the chances of him being paralyzed if he did not have the operation were greater than if he did have the operation.

Q. You attempted to compare risks of being paralyzed by having the surgery or not having the surgery?

A. That is correct.

Q. Am I not correct that you told him, going on to deal with what would happen if he did not have the surgery, you went on to say to him that he might very well some day, within a few years, have a stroke, or words to that effect, and fall on his nose?

A. I don’t know I said, “on his nose”, but at least he could fall down.

Q. Within a few years he could have a stroke if he did not have this operation and there was a pretty good chance of that occurring?

A. Yes, right.

Q. I suggest to you, however, that what you did not do was specifically tell your patient that he ran a specific risk of having a stroke and, in effect, being paralyzed if he had this operation. Do you understand the distinction?

[Page 922]

A. Yes. I felt that he realized he could have had a stroke because he asked the question.

Q. Do you think he actually understood what a stroke was?

A. He said, if not “paralyzed”, “weakness”.

Q. Let me take you back to your examination for discovery, page 14, question 139. If my friend objects to me saying this, perhaps he will let me know. Earlier on on that page you told the court how you described to him what the procedure was that you were going to do, the description physically of what you were going to do:

“Q. Right. Then did he appear to understand what was involved?

A. Yes, he did and as a matter of fact he brought up the question of possible complications. This was the first question he asked me, “What are the chances of having a stroke?””

Did he use those words?

A. Well, if he didn’t use ‘stroke’ he used ‘paralyzed’.

Q. You don’t recall specifically?

A. No, but I do realize he asked a question about the complications.

Q. You got the impression it would have to do with him being paralyzed or something of that sort?

A. Yes.

...

“Q. And what did you tell him?

A. I told him again, or for the first time, that the chances we felt were better, the chances of not—I guess I put it in a negative way. The chances of not having a stroke were better with surgery than if we left well enough alone.

Q. So in essence you told him that he would be better off with surgery than to carry on without it?

A. Yes.”

Is that true?

A. That is true.

Q. Will you agree with me that you did not discuss with him percentages of risk, whatever else you told him about this particular procedure, of having a stroke or being paralyzed as a result of the surgery?

[Page 923]

A. I didn’t mention any statistical figures.

Q. What I am concerned about is this: the plaintiff says, “If I had known and you, Dr. Hughes, had told me, that as a result of this surgery immediately I could be paralyzed, then I would have made an entirely different decision. All I believed was that whichever way I went I was then likely ultimately to have a stroke if I had the surgery.” You heard his evidence?

A. Yes.

Q. What do you say about that?

A. I don’t think he put any time limit on it either.

Q. He didn’t put any time limit on it. I suggest you didn’t tell him that he stood the risk in a positive way, that if he had the surgery there would be the risk of his having a stroke and becoming paralyzed, in effect, immediately after the surgery?

A. I didn’t say that specifically.

Q. Don’t you think that your patient had the right to know this specifically in order to give you an informed consent or refuse his consent?

A. Well, I think the fact that I said that we were talking 4 or 5 years, I think, as far as having a stroke without operation, I feel we were talking about the same interval. I didn’t lay down a day or two or month or year either way.

Q. Don’t you think that your patient was probably left in the position in which he thought if he did not have the operation he might very well, and there was a better chance of him having the stroke within 4 or 5 years than there was if you did the surgery on him?

A. Yes.

Q. What I am suggesting is that he did not understand and you did not tell him that he stood a specific risk, if he had the surgery, of being paralyzed as a result of the surgery?

A. Again only in the fact that we discussed the risks of either having or not having surgery without a time limit on when he might have something happen post-operatively.

Q. Page 18 of the examination for discovery, question 172:

“Q. Did Mr. Reibl ever ask you whether he might come out of the operation paralyzed?

[Page 924]

A. In so many words?

Q. Or words to that effect?

A. Well, to some effect yes, he said, ‘What are my chances of being paralyzed with the operation?’

Q. And did you answer that question?

A. Yes.

Q. And what did you say?

A. I told him that the chances of his being paralyzed from the operation were less than they would be if he did not have the operation.”

[Q.] Is that what you say? Do you agree now that that is what you told him?

A. Yes, I would say so.

Q. Assuming that is what he said?

A. Yes.

Q. A little lower down:

“This is something I did not understand, Doctor.” There was actually a discussion of paralysis, was there?

A. Yes.

Q. I took it from what you said earlier that the gist of your discussion each time was, ‘Look, you run the risk of a stroke if you don’t have the operation. Therefore, you are better off to have the operation than not to have it.’?

A. Yes.

Were you asked that question and did you make that answer?

A. At the time of discovery?

Q. Yes?

A. Yes.

Q. Was it true?

A. Yes.

Some of the cross-examination touched upon the question of re-operating on the plaintiff, and as to this I reproduce a single question and answer:

Q. In other words, in 1970, there were no circumstances under which you would consider re‑operating on a patient where you have done a carotid endarterectomy; is that fair?

A. I think that is fair.

Dr. Hughes later reiterated that because of the “very high mortality possibilities”, he would not re‑operate.

[Page 925]

5. Breach of Duty of Disclosure: The Findings Below Reviewed

In my opinion, the record of evidence amply justifies the trial judge’s findings that the plaintiff was told no more or understood no more than that he would be better off to have the operation than not to have it. This was not an adequate, not a sufficient disclosure of the risk attendant upon the operation itself, a risk well appreciated by the defendant in view of his own experience that of the sixty to seventy such operations that he had previously performed, eight to ten resulted in the death of the patients. Although the mortality rate was falling by 1970, the morbidity (the sickness or disease) rate, according to Dr. Hughes, was still about ten per cent. The trial judge was also justified in finding that the plaintiff, who was concerned about his continuing headaches and who was found to be suffering from hypertension, had the impression that the surgery would alleviate his headaches and hypertension so that he could carry on with his job. Dr. Hughes made it plain in his evidence that the surgery would not cure the headaches but did not, as the trial judge found, make this plain to the plaintiff.

The foregoing findings have a basis in the evidence independent of any reliance on so-called statistics which was criticized by the majority of the Court of Appeal. Although Brooke J.A., speaking for the majority, appeared to discount the trial judge’s determinations because the latter made no specific finding on credibility, it is patent to me that the trial judge’s conclusions involved a weighing of the evidence and, hence, a measuring of its relative worth on the issues that he had to decide. There were inconsistencies in the defendant’s evidence, as the trial judge noted in his reasons, and it was for him to reconcile them in arriving at his findings. For example, the defendant said in chief that he had told the plaintiff of the risk of a stroke during surgery and then said on cross-examination that the risks of the surgery were quite minimal. Again, on cross-examination, he said that he did not tell the patient that there

[Page 926]

was a risk of a stroke as a result of the surgery at any specific time thereafter, and he returned to an oft repeated statement that the chances of paralysis were greater without an operation than with it. (This was also the only reference by Dr. Lougheed, who testified for the defence, as to the risk involved in submitting to or foregoing the surgery. His evidence was almost exclusively related to post-operative care and whether a re-operation was feasible. He said it was not. However, as I noted earlier, post‑operative care was not an issue in this Court.) Moreover, the defendant placed this risk as one within a few years and not within any immediate time. Indeed, when asked in cross-examination whether he told the patient that the surgery carried the risk of a stroke, he answered, “I didn’t say that specifically”. 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.

In the passages that I quoted above from the reasons of Brooke J.A., speaking for the majority of the Court of Appeal, there are two approaches on the crucial issue whether the defendant apprised the plaintiff of the risk of a stroke from the very operation. In the first quoted passage, the learned Justice of Appeal appears to have viewed the trial judge’s finding on this question as a finding that the plaintiff was not made aware of that risk. This is clearly a correct assessment of the trial judge’s conclusion. However, Brooke J.A. went on to deal with the case and with the evidence as if there was a partial albeit not a sufficient disclosure of the particular risk, and he proceeded from there into an appraisal of the statistics to which the trial judge referred and found fault in their use. In the second quoted passage from the reasons of Brooke J.A., wherein he considered the statistics, he ignores the finding

[Page 927]

of the trial judge that there was no disclosure of the risks inherent in the surgery itself. In my opinion, there was a failure by the Court of Appeal to address this point directly. In the light of the defendant’s own evidence that there was a failure on his part to disclose the risk, even though the plaintiff himself raised the question of the risks he faced on the operating table, I do not see how there could be any doubt of a breach in this respect of the duty of disclosure.

Indeed, the reasons of the Court of Appeal in another passage, which I have not hitherto quoted, appear to support the trial judge’s finding that there was no proper disclosure by the defendant of the risk of the surgery itself. Brooke J.A. said this on the question:

He [the defendant] did not specifically discuss the questions of death or paralysis as risks of the surgery, his explanation being that he believed the patient was aware of the risk because of questions that he asked when the surgery was being discussed. It was his view that no further detail was necessary.

In this respect then, there would seem to be concurrent findings of fact against the defendant on a central point in case.

There were a number of relevant considerations informing the findings of the trial judge, about which there was no dispute. First, there was no emergency making surgery imperative. There was no noticeable neurological deficit. The defendant himself placed the risk of a stroke as one off in the future, four to five years. Any immediate risk would be from the surgery and not from foregoing it. Moreover, it must have been obvious to the defendant that the plaintiff had some difficulty with the English language and that he should, therefore, have made certain that he was understood. Finally, there was no evidence that the plaintiff was emotionally taut or unable to accept disclosure of the grave risk to which he would be exposed by submitting to surgery. 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

[Page 928]

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. 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. The question that remains, therefore, is whether this was a sufficient basis upon which to direct a new trial.

6. Causation

Relevant in this case to the issue whether a reasonable person in the plaintiff’s position would have declined surgery at the particular time is the fact that he was within about one and one‑half years of earning pension benefits if he continued at his job; that there was no neurological deficit then apparent; that there was no immediate emergency making the surgery imperative; that there was a grave risk of a stroke or worse during or as a result of the operation, while the risk of a stroke without it was in the future, with no precise time fixed or which could be fixed except as a guess of three or more years ahead. Since, on the trial judge’s finding, the plaintiff was under the mistaken impression, as a result of the defendant’s breach of the duty of disclosure, that the surgery would relieve his continuing headaches, this would in the opinion of a reasonable person in the plaintiffs position, also weigh against submitting to the surgery at the particular time.

In my opinion, a reasonable person in the plaintiff’s position would, on a balance of probabilities, have opted against the surgery rather than undergoing it at the particular time.

Conclusion

I would, accordingly, allow the appeal, set aside the order of the Court of Appeal and restore the

[Page 929]

judgment at trial. The appellant is entitled to costs throughout.

Appeal allowed with costs.

Solicitors for the plaintiff, appellant: Thomson, Rogers, Toronto.

Solicitors for the defendant, respondent: McCarthy & McCarthy, Toronto.