Duperron v. Elliott, 2011 ABQB 204

Court of Queen ’ s Bench of Alberta Citation: Duperron v. Elliott, 2011 ABQB 204 Date: 20110404 Docket: 0303 22113 Registry: Edmonton Between: Randy Duperron by his Next Friend, Charmaine Stratton, Charmaine Stratton, and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Clark A. Elliott Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. Paul Belzil _______________________________________________________ The Parties [ 1 ] Randy Duperron has sued, through his next friend and mother Charmaine Stratton, Dr.

Clark Elliott resulting from surgery performed by him on November 30, 2001. Her Majesty the Queen in the Right of Alberta is a nominal plaintiff seeking to recover medical expenses. The Evidence

a) Randy Duperron

[ 2 ] Randy was born in November, 1993, is currently 17 years of age and working while he pursues correspondence studies to complete high school. He testified that prior to undergoing a tonsillectomy and adenoidectomy (T &

A) on November 30, 2001 performed by the Defendant, he often experienced difficulty with breathing and drooled saliva while sleeping. He experienced no trouble with his tongue and experienced no difficulties with speech or swallowing. [ 3 ] He has very little recall of the surgery but does recall spitting up blood in the recovery room and experiencing a sensation of fluid running down his throat. He has little or no memory of being returned to surgery several times as a result of post-operative bleeding. [ 4 ] He recalls returning home several days later, at which time he again started to spit out blood.

He was taken to the Whitecourt Hospital and then transferred back to Edmonton by air ambulance. He has no memory of what treatment he was given on his return. [ 5 ] He returned to school in January 2002 and was subject to some teasing at school and noticed that people he was speaking to would comment that he was difficult to understand. [ 6 ] On occasion he had trouble swallowing food and that sometimes while he was drinking he would expel fluid from his nose if he drank too quickly.

Over time and with the assistance of his mother, he learned to swallow excess saliva and better chew his food and control his drinking of liquids. [ 7 ] Shortly after the surgery he noticed that his tongue, which was previously aligned normally, was deviating to the left. As well, he noticed some deformation of the tissue on the left top portion of his tongue. There was also a mark on his tongue following the surgery which disappeared.

He recalled one incident at school when he choked on a hot dog and a teacher performed the Heimlich Manoeuver on him. [ 8 ] At the current time his main complaints relate to the deviation of the tongue and his inability to move his tongue fully to the left which impacts chewing and the build up of saliva which he corrects by lowering his chin somewhat to the left and swallowing. He eats a full diet but chews hard foods more carefully. He has a normal sense of taste. [ 9 ] In cross examination he admitted that aside from a visit to Mr.

Lear, a speech therapist retained by the Defendant, in September 2009 he was only checked by a speech therapist on two occasions, once in December 2001 and once in 2005. He has never received any form of speech therapy. He further acknowledged that over time his condition has improved and he has few ongoing problems.

b) Charmaine Stratton [ 10 ] Charmaine Stratton is the mother of Randy Duperron. She testified that prior to the surgery she was concerned about her son’s constant sniffling, infections and snoring at night. He also tended to drool saliva during the night. [ 11 ] Her family doctor, Dr. Bell, recommended Nasonex medication but the symptoms persisted. Dr. Bell advised that sooner or later it was likely that T & A surgery would be required. [ 12 ] A referral was made to the Defendant, Dr. Clark Elliott.

The Plaintiffs met him in May 2001 at which time he explained the risks involved, including risks of infection and reaction to anaesthetic. [ 13 ] She has no recall of any discussion about a risk of slurred speech but does recall being advised of the possibility of a voice change. She confirmed that prior to the surgery Randy’s tongue was normal.

[ 14 ] She recalls that after the initial surgery Randy was coughing up blood and had to be returned to surgery. She also recalls that he was returned to surgery a second time early in the morning of December 2 nd , again as a result of spitting up blood. [ 15 ] Randy was discharged home on December 3 rd but began to cough up blood when he got home and as a result he was taken to the Whitecourt Hospital and then returned to Edmonton by air ambulance.

Randy was discharged for the final time on December 11, 2001 and returned to school in January 2002. [ 16 ] She testified that with her assistance Randy’s chewing has improved over time as has his ability to swallow excess saliva. While initially he had difficulty with speech, over time she acknowledged significant improvement although she still notices some slight slurring as a result of the pooling of saliva in his mouth. [ 17 ] In cross examination she admitted that Randy was born with large tonsils and frequently developed tonsil infections. His breathing was noticeably loud and getting worse over time.

On the recommendation of Dr. Bell, Randy was referred to an allergist, but testing revealed that he was not having allergic reactions. [ 18 ] She admitted that during the first visit with the Defendant he asked if Randy had any bleeding issues and she replied that he did not. She was asked whether he was circumcised at birth and, if so, were there bleeding issues? She replied that he was circumcised without difficulty. [ 19 ] She recalls that the Defendant spoke to her about the risks of bleeding but could not recall exactly what he said about this subject.

He also mentioned that some patients have swallowing issues for a period of time following surgery. She also recalls that he mentioned that one or two children die in Canada each year from T & A surgery and that he also mentioned a risk of infection. [ 20 ] She acknowledged having a second visit with the Defendant in August 2001 wherein he again reviewed the risks of T & A surgery and that he drew a diagram of the throat explaining what the surgery involved. [ 21 ] He made it clear that it was for Ms. Stratton and Randy to decide whether to proceed or not.

She signed the consent forms and the surgery took place on November 30, 2001. [ 22 ] She acknowledged that she has never sought speech therapy for Randy.

c) Dr. Lawrence Richer [ 23 ] Dr. Richer is a Paediatric Neurologist qualified by consent to give evidence in the field of paediatric neurology with particular expertise in the area of peripheral nerve damage. [ 24 ] Dr. Richer confirmed that he reviewed the operative notes with respect to Dr.

Elliott’s treatment of Randy and had three visits with him in 2004, 2005 and 2010. [ 25 ] It is his opinion that the IX cranial nerve, which is the glossopharyngeal nerve and the XII cranial nerve which is the hypoglossal nerve, were damaged as a result of the T & A surgery in 2001. [ 26 ] He described that the glossopharyngeal nerve provides sensation to the one-third rear portion of the tongue and throat and is the main sensory nerve to the tongue. The hypoglossal nerve is the main nerve which provides motor control to the tongue.

[ 27 ] His observation of Randy is that the tongue muscles are not functioning properly resulting in a left deviation of the tongue.

He also observed a loss of muscle bulk and confirmed that there has been no change in the situation from 2005 until he last examined him in 2010 and opined that no further improvement is likely. [ 28 ] He confirmed that his conclusion about the origin of injury to the glossopharyngeal and hypoglossal nerves derives from an absence of other findings and that the most likely explanation for injury to these nerves was the T & A surgery. [ 29 ] He described that nerves can be damaged in a number of ways, including transection which is a complete separation of nerve ends.

In his opinion, both of these nerves were transected as he would have expected that if there were only compression damage to the nerves there would have been some regeneration. Given the length of time which has elapsed, no regeneration has occurred to date, nor is any likely to occur in the future, thus transection is the likely explanation. [ 30 ] His observations of Randy are that he has adapted to this nerve damage and described his quality of speech as being quite good. [ 31 ] In cross examination Dr. Richer confirmed that he has never performed T & A surgery and has no surgical experience whatsoever.

He has no experience with electrocautery and no experience with the other surgical instruments which are utilized. [ 32 ] Dr. Richer confirmed that nerves can be broken in four ways:

a) by stretching to the point of snapping

b) by the application of direct force involving a sharp object

c) by the application of a ligature

d) compression [ 33 ] With respect to compression, he confirmed that compression could involve the application of direct force which could cut off blood flow. He also confirmed that this could result in ischemia, that is cutting off blood flow to other tissues which could build up scarring which could block reinervation of a nerve.

d) Dr. Clark A. Elliott [ 34 ] Dr. Elliott is a paediatric otolaryngologist. He estimates that by November 2001 he had performed between 2,000-3,000 T & A surgeries. [ 35 ] He first met with Randy and Ms. Stratton on June 14, 2001 on a referral from Dr. Bell. There was a discussion about his condition, including the fact that he was constantly sniffling and having difficulty breathing. [ 36 ] Dr. Elliott’s notes reflect, and he recalls, discussing Randy’s general medical history which did not include a history of easy bleeding or recurrent infections.

He recorded a note that Randy had been circumcised at birth without incident which is a recognized “sentinel event” for potential bleeding complications. [ 37 ] Dr. Elliott discussed with the Plaintiffs the risk of T & A surgery and confirmed to them that this is considered to be a major surgical procedure. He emphasized that there is a 2% to 5% risk of bleeding, a 1/1000 risk of a loss of voice requiring surgical correction, 1/1000 risk of requiring a blood transfusion and confirmed that one or two children per year die in Canada from post-operative T & A

bleeds. He also drew a diagram for them describing what was involved. [ 38 ] A decision was made at that time to continue using the sinus medication and it was suggested that there would be a follow-up evaluation which occurred in August 2001. [ 39 ] At that time it was determined that Randy’s condition had not changed and there was again a discussion about the risks of proceeding with T & A surgery. Dr. Elliott confirmed that there was no discussion about possible nerve damage but confirmed that any surgery can cause nerve damage. Ms.

Stratton signed a consent to the surgery on August 9, 2001 which was carried out on November 30, 2001. [ 40 ] Dr. Elliott confirmed that the surgery was carried out under general anaesthetic and that a mouth gag was utilized known as a Boyle-Davis mouth gag. This device is used to retract the tongue, thus exposing the surgical field to the surgeon. [ 41 ] Dr. Elliott confirmed that he used bipolar electrocautery to gently remove the tissue around the tonsillar fossa which is the cavity which holds the tonsil. Dr.

Elliott confirmed that bipolar cautery results in less tissue damage and that the initial incision is only one millimetre in depth. The procedure involves identifying blood vessels as the tissue is opened, which are then cauterized. [ 42 ] He confirmed that the IX cranial nerve, being the glossopharyngeal, is not visualized as that would involve digging into tissue which can result in infection or an intake of air into that area, both of which conditions can be life-threatening.

He also emphasized that any attempt to locate the glossopharyngeal nerve might result in injury to the carotid artery which also can be fatal. The same concerns apply to the hypoglossal nerve being the XII cranial nerve. [ 43 ] He confirmed that the removal of the right tonsil took approximately five minutes and nothing unusual occurred. He then removed the left tonsil and confirmed that the total surgery lasted approximately 20 to 30 minutes. [ 44 ] No bleeding was observed as Randy was awakened from his anaesthetic and taken into the recovery room. He was complaining about a sensation in his throat. Dr.

Elliott testified that he felt that it was important to rule out bleeding and thus discussed with Ms. Stratton the importance of returning Randy to the operating room to examine his throat. She agreed and he was returned to the operating room under general anaesthetic and examined. At the time some small areas of blood oozing were identified and cauterized. [ 45 ] Early in the morning of December 2 nd Dr. Elliott was paged at home and advised that Randy was spitting out some blood, at which point he returned to the hospital. He discussed the situation with Ms.

Stratton and advised her that if he was experiencing bleeding this could be potentially life-threatening and she agreed that it was important to have him return to the operating room, placed under anaesthetic and examined. [ 46 ] When this was done it was determined that there was a protruding artery which was tied off with two sutures.

He was re- anaesthetized and examined several times in an attempt to stop bleeding and once this was done he was then discharged home. [ 47 ] On December 4 th he was returned by air ambulance because of a report of bleeding but on arrival in Edmonton no bleeding was found and he was not returned to the operating room. He was discharged a few days later with a feeding tube. Dr. Elliott examined Randy again on December 19 th and never saw him after that time. [ 48 ] Dr.

Elliott commented that a complication involving the glossopharyngeal IX cranial nerve is very rare and generally there is a reinervation of any nerve which is damaged during T & A surgery. [ 49 ] He confirmed that there was never any discussion with Ms. Stratton about the possibility of Randy ending up with a slurred

speech problem, but did confirm that he told her that there may be a change in the resonance of the voice as a result of this surgery. He also confirmed that he did not warn her about a possibility of tongue injury from nerve damage. [ 50 ] He confirmed that at the time this procedure was done in 2001 there was very little awareness in medical literature about problems arising from the use of mouth gags, whereas recent literature has identified a risk of nerve damage from prolonged use. [ 51 ] He reiterated that a post T & A bleed can be life-threatening. It can become uncontrolled, thus there is no option other than stopping the bleeding.

e) Dr. Duncan Macrae [ 52 ] Dr. Macrae was qualified as an expert in otolaryngology and has been a specialist since 1976. He was qualified to give opinion evidence on the standard of care for an otolaryngologist surgeon in 2001. Dr.

Macrae has performed approximately 3,500 T & A surgeries on children. [ 53 ] He opined that it was medically appropriate to offer the T & A surgery to the Plaintiffs as an option for treatment. [ 54 ] He was provided a series of hypotheticals and opined that the description of risk by the Defendant was appropriate, that is, a T & A procedure is major surgery under general anaesthetic with a risk of bleeding of between 2% to 5%, 1/1000 patients require a transfusion and 1/1000 patients suffer a change of speech or voice requiring surgical intervention.

There are other rare complications and one or two children per year die in Canada from T & A surgery. [ 55 ] He also opined that the surgery carried out by the Defendant in 2001 was done in accordance with the standard of care known at that time. There are different techniques for T & A surgery and the Defendant used one of the two more common techniques. [ 56 ] He also opined that the post-operative management of bleeding was appropriate and there was no breach of the standard of care.

He noted the fact that post-operative bleeding is not indicative of an error having been made as bleeding is a risk of this type of surgery. [ 57 ] He opined that damage to the IX and XII cranial nerves most likely occurred with the back and forth visits to the operating room to control post-operative bleeding. [ 58 ] In his opinion, the most likely mechanism for the damage came as a result of stretching from the mouth gag in combination with repeat cauterization and the fact that the mouth gag was placed into different positions at different times. [ 59 ] He noted that some temporary nerve damage is not uncommon following this type of procedure but permanent nerve damage is very rare. [ 60 ] In his opinion, a transection of the XII cranial nerve was extremely unlikely as this would have damaged major blood vessels, including the carotid.

He noted that these vessels overlie the XII cranial nerve and thus it would be virtually impossible to transect it without cutting or damaging them. [ 61 ] He opined that the process of stretching of nerves compressing of them and resulting ischemia did not constitute a breach of the standard of care at that time.

[62] He conceded that if the XII cranial nerve was transected this would be a breach of the standard of care. [63] He noted that if the surgeon stays in the correct surgical plane, the surgeon would not encounter the IX cranial nerve. [64] He opined that pulling up the tonsillar artery to stop bleeding may have pulled up a nerve which may then have been caughtup by the suturing or cauterization but this would not constitute a breach of the standard of care. [65] There are a number of factors with respect to the mouth gag which could contribute to compression damage, including thelength and width of the blade, its position, the amount of time it is in position and the amount of pressure applied by it.

He noted that theDefendant periodically relieved pressure from the mouth gag. [66] In his opinion there is no requirement to advise a patient of every possible risk of surgery unless it is substantive and statedthis process would be endless otherwise. He does not discuss potential injury to the IX or XII cranial nerves with his patients and he hasno knowledge that this is done anywhere in the world. There is a very low risk or nerve damage. As with all surgery, there is a discussionabout the risk benefit ratio. [67] Dr.

Macrae confirmed that each patient is anatomically different and that it would be dangerous to visualize nerves.Accordingly, the surgeon cannot know where the nerves are and in his opinion there was nothing different which could have been donehere. He opined that Dr. Elliott used the correct procedure to tie off the bleeding tonsillar artery. [68] He confirmed that the tonsillar artery is very small and that it is tied off with a normal ligature, not a suture ligation whichinvolves the use of a needle. None of the nurses’ notes made any reference to eyed needles being used.

f) Jeffrey Lear [69] A report of Jeffrey Lear, a Speech-Language Pathologist retained by the Defendant, was entered by consent. He did not testify. Breach of the Standard of Care

a) Defining Standard of Care [70] In ter Neuzen v. Korn (SCC), [1995] 3 S.C.R. 674, the standard of care for a specialist was described in para.46 and 47 where reference was made as to the appropriate time to assess the conduct of physicians: 46 It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligentdoctor in the same circumstances.

In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour must beassessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skillexpected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a specialdegree of skill and knowledge, must exercise the degree of skill of an average specialist in his field: see Wilson v. Swanson, (SCC), [1956] S.C.R. 804 at 817, Lapointe c. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351 at 361 andMcCormick v.

Marcotte (1971), (SCC), [1972] S.C.R. 18. 47 It is also particularly important to emphasize, in the context of this case, that the conduct of physicians must be judged in the light

of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence. . . [ 71 ] At para. 51 the court commented on the significance of a physician following accepted medical practice: 51 It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field.

In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent. . . [ 72 ] The Plaintiffs admit that it was medically appropriate to offer T & A surgery as a treatment option. [ 73 ] The Defendant admits that Randy sustained injury to his IX and XII cranial nerves as a result of the treatment he received from the Defendant.

The parties strongly disagree however, as to how the injury occurred and whether the Defendant is culpable. [ 74 ] The anatomical and surgical considerations surrounding the IX and XII cranial nerves are different, thus I will consider the issue of the alleged breach of the standard of care for each nerve separately. A. The IX Glossopharyngeal Cranial Nerve [ 75 ] The Plaintiffs rely on the opinion of Dr. Richer that this nerve was transected and argue that transection could only occur as a result of a breach of the standard of care owed by the Defendant. [ 76 ] Dr.

Macrae opined that damage to this nerve could have occurred in several ways, including transection, compression from the use of the mouth gag and from the process of suturing and cauterizing blood vessels following removal of the tonsils. [ 77 ] He further opined that the medical treatment delivered by the Defendant met the appropriate standard of care at that time. [ 78 ] It is uncontroverted that the glossopharyngeal nerve is situated behind the tonsillar fossae and is not visualized as part of the T & A surgery.

Indeed, it is dangerous to visualize this nerve because of the risk of infection and the risk of introducing an air embolism. [ 79 ] As such, the surgeon is operating in a surgical environment in which it is impossible to know where this nerve is located precisely as each patient is anatomically unique. In some patients, accordingly, the glossopharyngeal nerve is located quite close to the tonsillar fossae whereas in other patients it is not. [ 80 ] Dr.

Macrae opined that what may have happened is that this nerve was injured during the process of tying off and cauterizing the tonsillar artery which was bleeding post-operatively. He testified that it is an imperative to stop this bleeding and that the Defendant utilized the correct procedure in doing so. [ 81 ] He also opined that this nerve may have been damaged because of repeated use of the mouth gag as Randy was returned to the operating room several times because of post-operative bleeding.

[ 82 ] I have concluded that it is irrelevant how the glossopharyngeal nerve was injured as there is no evidence that anything done or not done by the Defendant was in breach of the appropriate standard of care respecting it. [ 83 ] The Plaintiffs led no evidence that the surgical technique used by the Defendant, including repeated use of the mouth gag, was not appropriate in 2001. Dr. Richer was not qualified to offer opinion evidence on the subject of surgery. [ 84 ] It was argued that in 2001 it was recognized in the medical literature that nerve damage could result from T & A surgery. Dr.

Macrae observed that nerve damage can result from any surgery but that in 2001 otolaryngologists did not have the appreciation they currently have respecting the hazards of using mouth gags. [ 85 ] In the result, on this evidentiary record the Plaintiffs have failed to establish a breach of the standard of care respecting injury to the IX glossopharyngeal cranial nerve irrespective of how it was injured. B. The XII Hypoglossal Cranial Nerve [ 86 ] Dr.

Richer opined that this nerve was most likely transected but did not offer any explanation as to how this could have occurred without injury to overlying blood vessels, including the critical carotid artery. It is not possible to objectively verify whether the hypoglossal nerve was actually transected or injured in some other way. [ 87 ] Dr. Macrae opined that the perspective of any surgeon is three dimensional and therefore it is necessary to consider that the surgery takes place on a surgical plane.

In other words, horizontal and vertical depth perspectives must be considered. [ 88 ] During T & A surgery, when the patient is lying on his back, the surgeon observes the throat through the patient’s mouth and operates on a horizontal plane to remove the tonsils from the tonsillar fossae. [ 89 ] Dr.

Macrae opined that the Defendant would have breached the standard of care if he deviated from the appropriate horizontal surgical plane and cut tissue outside of it, including the hypoglossal nerve. [ 90 ] However, he emphasized that it would be almost anatomically impossible to transect the hypoglossal nerve without injuring the overlying blood vessels because they are situated between the hypoglossal nerve and the tonsillar fossae. There is no evidence that these overlying blood vessels were in any way impacted by the medical procedures undertaken by the Defendant. [ 91 ] Significantly, Dr.

Richer, while recognizing this anatomical issue in his reports and oral testimony, offered no explanation whatsoever as to how the Defendant could have transected the hypoglossal nerve without causing surrounding blood vessel damage. [ 92 ] Dr. Macrae’s theory accounts for this anatomical reality whereas Dr. Richer’s opinion does not. Theory must always give way to a known certainty which conflicts with it. [ 93 ] The trier of fact must question the factual foundation of expert opinion evidence in order to determine what weight, if any, should be attributed to it. [ 94 ] In R. v.

Neve 1999 ABCA 206 the Alberta Court of Appeal at para. 191 made the following observation: . . . For the court to accept an expert opinion without scrutinizing and assessing its foundation is, effectively, to put the expert in the role

of judge. [95] In R. v. Howard (SCC), [1989] 1 S.C.R. 1337 at para. 20 it was observed that the validity of the expert’sopinion is determined by whether it rests on a proper scientific basis. [96] Dr. Richer’s opinion that the hypoglossal nerve was transected rests on the anatomically impossible foundation thattransection occurred without any damage to overlying blood vessels. [97] While recognizing the existence of this conundrum, he made no attempt to explain it.

Absent such an explanation, I mustconclude that his opinion respecting the mechanism of injury to this nerve cannot be correct because it does not rest on a valid scientificbasis. [98] I find as a fact that the absence of any evidence of damage to surrounding blood vessels must mean that the hypoglossal nervewas not transected but rather was injured in some other way. [99] Dr. Macrae opined that repeated use of the mouth gag likely caused hypoglossal nerve damage. I accept his opinion over thatof Dr. Richer. Dr.

Macrae has substantial surgical experience and is eminently qualified to give expert evidence on the specifics of thistype of surgery and the likelihood of impacting tissues in that area of the body. [100] Dr. Macrae opined that the surgery was performed in accordance with recognized medical practice at that time. As noted in theter Neuzen v. Korn decision at para. 51, ordinarily a court will not find negligence if a physician follows recognized medical practice. C.

Conclusion on Breach of Standard of Care [101] The Plaintiffs have failed to establish that the Defendant departed from recognized medical practice in his treatment of Randyand have failed to prove that he breached the standard of care owed to the Plaintiffs.

Informed Consent [102] It is an accepted legal principle that even if the Plaintiffs cannot establish a breach of the standard of care they will succeed ifthey can establish that the Defendant ought to have disclosed the risk of nerve injury and that a reasonable person in the position of thePlaintiffs would not have proceeded with the surgery if proper disclosure had been made. This necessarily involves a two stage analysis. [103] In Hopp v.

Lepp (SCC), [1980] 2 S.C.R. 192, it was held at para. 34, that a surgeon has a duty to disclose thenature of the proposed operation, its gravity, any material risks and any unusual or special risks attendant upon the performance of theoperation. No authority has been cited which supports the proposition that a surgeon is required to disclose all possible risks of surgery. [104] In White v.

Turner (ON SC), 31 O.R. (2d) 773, the terms “material risks” and “unusual or special risks” were defined in the following terms at paras. 52 and 53: 52 The meaning of “material risks” and “unusual or special risks” should now be considered. In my view, material risks aresignificant risks that pose a real threat to the patients’ life, health or comfort. In considering whether a risk is material or immaterial, onemust balance the severity of the potential result and likelihood of its occurring. Even if there is only a small chance of serious injury or

death, the risk may be considered material. On the other hand, if there is a significant chance of slight injury this too may be held to bematerial. As always in negligence law, what is a material risk will have to depend on the specific facts of each case. 53 As for “unusual or special risks”, there are those that are not ordinary, common, everyday matters. These are risks that aresomewhat extraordinary, uncommon and not encountered every day, but they are known to occur occasionally.

Though rare occurrences,because of their unusual or special character, the Supreme Court has declared that they should be described to a reasonable patient, eventhough they may not be “material”. . . [105] In Reibel v. Hughes (SCC), [1980] 2 S.C.R. 880, the court adopted a modified objective test in determiningwhat a reasonable patient, in the circumstances of the plaintiff, would have done if given additional information about the risks ofsurgery. [106] The Defendant admitted that he did not warn the Plaintiffs of the risk of nerve damage. Dr.

Macrae, whose opinion I accept,opined that in his own practice in 2001 he did not warn patients contemplating T & A surgery of the risk of nerve damage and is notaware that this was done anywhere in the world at that time. He opined that the description of risk provided to the Plaintiffs by theDefendant in 2001 met the proper standard. The Plaintiffs presented no evidence to the contrary. [107] As earlier noted, the ter Neuzen v.

Korn decision is authority for the proposition that ordinarily a physician followingrecognized medical practice will result in a finding of no negligence. [108] The Plaintiffs have failed to prove that the Defendant’s description of the risk of the T & A surgery was in any wayinappropriate. [109] However, even if the Plaintiffs could establish that the Defendant made less than a proper level of disclosure of the risk ofsurgery, I do not accept that they have proven on a balance of probabilities that they would not have proceeded with the surgery in anyevent. [110] Ms.

Stratton testified that Randy’s breathing and problems with recurrent infection were long standing. Medication was triedwithout success. There were attendances on Dr. Bell, their family physician, who ultimately referred them to Dr. Elliott for a specialistconsult. After the initial meeting with Dr. Elliott in June of 2001 they returned in August at which time the decision was made to proceedwith surgery. [111] This decision was made in the face of the Defendant’s advice that this was major surgery under general anaesthetic.

He advisedthat there was a 1/1000 risk of voice damage which could require surgical correction, a 1/1000 risk of the need for a transfusion, a 3% to5% risk of post-operative bleeding and a small risk of death. [112] I do not accept that if the Defendant had warned about a rare risk of nerve damage that Ms. Stratton, having been advised aboutother risk factors, would somehow focus on this rare risk and decline to proceed with surgery. She knew that there were risks inproceeding, including death, and decided to proceed in any event.

On the evidence, there was no other realistic alternative to the T & Asurgery to resolve Randy’s long term medical difficulties. [113] This is not analogous to a situation wherein Ms. Stratton thought that she was proceeding with a risk free treatment option forher son and the disclosure of any risk would have dissuaded her from proceeding. [114] Using a modified objective test, the Plaintiffs have failed to prove that they would have declined to proceed with the surgery. [115] In the result, the Plaintiffs have failed to prove on the balance of probabilities that there was a lack of informed consent.

Assessment of Damages [116] In the event that I am found to be in error in concluding that the Plaintiffs have failed to establish liability against theDefendant, I will proceed to assess damages. [117] The most significant claim of the Plaintiffs relates to the claim by Randy for non-pecuniary general damages.

It is conceded thatonly the sequelae of nerve damage would be compensable, not post-operative bleeding or swelling which are recognized risks of T & Asurgery. [118] The Plaintiffs argue that Randy has been left with a permanent swallowing deficit, an impairment of his speech and somedeformation of muscle tissue in his tongue. [119] The Defendant entered into evidence, with the consent of the Plaintiffs, a report from a speech pathologist, Mr. Jeffrey Learwho examined Randy in September 2009. Lear opined that the quality of his speech was very good and that he does not require any formof speech therapy.

He videotaped him eating a sandwich and drinking a bottle of pop, which video was played during the trial. Randy atethe sandwich and drank the pop quickly without any apparent difficulty. [120] I had the opportunity to observe and listen to Randy as he testified. His speech is completely intelligible. His facial appearanceis normal with no facial palsy. I accept Mr. Lear’s conclusion, supported by Ms.

Stratton, that Randy has adapted well to his injuries.However, I do accept that his injuries initially caused him some embarrassment and that he was teased at school. [121] It is uncontroverted that he has been left with a permanent deviation of his tongue. His sense of taste is normal. The video doesindicate that while Randy is swallowing he tends to turn his head slightly to the left and down, which movement is discernible to theobserver but appears in no way to prevent him from eating his food rapidly.

He has a normal diet. [122] Counsel for the Plaintiffs suggested a general damages figure in the range of $65,000-$100,000 whereas counsel for theDefendant suggested a figure in the range of $30,000-$50,000. [123] A number of cases have been cited to me on the issue of the appropriate award for general damages in this case, none of whichare precisely on point. [124] The case which most closely approximates the injuries to Randy is the decision of Casey v.

Provan (1984) (ON SC), 47 O.R. (2d) 147, which involved an award of damages for left laryngeal nerve damage and left hypoglossal nerve damageresulting in permanent voice damage and tongue paralysis. The Plaintiff in that case underwent corrective surgery which was notsuccessful. He was a civil servant whose job involved conducting interviews.

He experienced difficulty eating. [125] General damages were awarded in the amount of $25,000 which would result in a present day award of approximately $50,000.The facts in that case are somewhat more serious than the facts in this case. [126] In my view, the general damages for Randy should be assessed in the amount of $40,000. This figure reflects the permanency ofhis injuries and that he has adapted well to them.

The injuries are modest in nature with a minimal impact on him. [127] There is no loss of income claim nor is there any cost of care claim as there is no suggestion that he will require any form ofspeech therapy in the future.

[ 128 ] The Defendant suggests special damages in the range of $1,000 representing the cost of various medical attendances which, in the absence of any other evidence on this subject, is a reasonable amount. [ 129 ] Counsel will attempt to reach agreement on the claim by Her Majesty the Queen in Right of Alberta for medical expenses. [ 130 ] The only other claim for damages is the claim for psychological injury which is being advanced by Ms. Stratton on the authority of Odhavji Estate v.

Woodhouse 2003 SCC 69 , which is authority for the proposition that some types of tortious activity which cause provable psychiatric illness may be compensable. [ 131 ] While I accept that Ms. Stratton was upset by what occurred, there is no evidence whatsoever that she developed any type of psychiatric illness following Randy’s surgery and as a result this claim is dismissed. [ 132 ] In addition, the Plaintiffs would be entitled to recover pre-judgment interest pursuant to the Judgment Interest Act R.S.A. 2000, c. J-1. Conclusion and Order [ 133 ] In the result, this action is dismissed in its entirety.

Costs may be spoken to. Heard from March 14-22, 2011. Dated at the City of Edmonton, Alberta this 4 th day of April , 2011. R. Paul Belzil J.C.Q.B.A. Appearances: Shawn A. Beaver Beaver Leebody Frank & Simic for the Plaintiffs Simon D. Johnson and Tari M. Hiebert Bennett Jones LLP for the Defendant