Gilberds v. Sobey, 2011 ABQB 491

Court of Queen ’ s Bench of Alberta Citation: Gilberds v. Sobey, 2011 ABQB 491 Date: 20110803 Docket: 0703 13334 Registry: Edmonton Between: Heather Gilberds Plaintiff - and - Alan Sobey, Capital Health and Caritas Health Authority Operating a Hospital Known As the Grey Nuns Community Hospital Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.M. Ross _______________________________________________________ A. Introduction.............................................................................................................. Page: 2 B.

Facts ....................................................................................................................... Page: 3 1. The Enlarged Neck Lymph Nodes ........................................................... Page: 3 2. The Decision to Operate ........................................................................... Page: 4 3. The Enlarged Lymph Nodes are Removed ............................................. Page: 6 4. Post-Operation Examinations and Treatment ........................................ Page: 7

5. The Nerve Injury is Discovered ................................................................. Page: 9 C. Limitations Issue.................................................................................................... Page: 9 1. Law .............................................................................................................. Page: 9 2. Analysis ..................................................................................................... Page: 11 D. Standard of Care................................................................................................. Page: 12 1.

Informed Consent as to Risk of Nerve Injury ......................................... Page: 13 a. Parties’ Evidence........................................................................ Page: 13 b. Expert Testimony......................................................................... Page: 14 c. Law: Informed Consent............................................................... Page: 14 d. Law: Informing about Risks of Medical Treatment................... Page: 15 e. Probability of Risk........................................................................ Page: 17 f.

Analysis......................................................................................... Page: 19 2. Informed Consent as to Appropriateness of Surgery .......................... Page: 20 3. Would Ms. Gilberds Have Undergone Surgery if Properly Informed? Page: 21 a. Law................................................................................................ Page: 21 b. Evidence....................................................................................... Page: 22 c. Analysis......................................................................................... Page: 23 4.

Negligent Treatment ................................................................................ Page: 24 a. Decision to Proceed with the Biopsy........................................ Page: 24 b. Performing the Biopsy................................................................. Page: 26 c Post-operative Care.................................................................... Page: 28 E. Conclusion............................................................................................................ Page: 29 A.

Introduction [ 1 ] In this medical malpractice action, the Plaintiff, Heather Gilberds, seeks damages from the Defendant, Dr. Alan Sobey, for damage to her spinal accessory nerve which occurred during a lymph node biopsy performed by the Defendant upon the Plaintiff on December 14, 1999. Dr. Sobey acknowledges he owed Ms. Gilberds a duty of care. It is agreed that the Plaintiff’s nerve is damaged, and that damage occurred as a result of the surgery.

The quantum of damage is also agreed. [ 2 ] A claim against the Caritas Health Authority operating as the Grey Nuns Community Hospital has been discontinued. [ 3 ] The remaining issues in this action are whether:

1. the Plaintiff’s claim is barred by the provisions of the Limitations Act , R.S.A. 2000, c. L-12, and 2. the Defendant breached the standard of care. B. Facts [ 4 ] Ms. Gilberds is now 33 years old. In the fall of 1999, she was 22 years old, living with her parents in Edmonton, and attending a B.A. program at the University of Alberta. She had part-time employment as a waitress. She led quite an active lifestyle. In high school she had played on soccer and rugby teams until injuries, a dislocated shoulder and a fractured spine, caused her to cease these pursuits.

She recovered from the injuries and as an undergraduate took up various recreational activities including kayaking, mountain biking, hiking and kung fu. She was generally healthy, although she was on medication (Prozac) to deal with anxiety. 1. The Enlarged Neck Lymph Nodes [ 5 ] In early September 1999, Ms. Gilberds noticed some lumps in her neck and mentioned this concern during a visit to a walk in clinic, where she saw Dr. Zaragoza. She was told that the lumps were enlarged lymph nodes, sent for a mononucleosis test, and advised to monitor the lumps and return in two months.

The test was negative. [ 6 ] The lumps persisted and remained a concern for Ms. Gilberds. She raised them on a visit to her family physician, Dr. Ference, on October 19, 1999. Dr. Ference noted that Ms. Gilberds had experienced night sweats for four to five months and that she had small nodes in the posterior part of her neck. Dr. Ference recommended that the nodes be investigated by a needle biopsy in order to determine whether the enlarged nodes were caused by lymphoma, a cancer of the lymphatic system, or were reactive (benign). [ 7 ] Dr. Ference referred Ms. Gilberds to the Defendant, Dr.

Alan Sobey, a general surgeon, for a fine needle biopsy. On receiving the written referral, Dr. Sobey noted that the patient being referred was a 22 year old woman, who had enlarged lymph nodes in her neck and had been experiencing night sweats for five to six months. There was no history that would suggest why the lymph nodes were enlarged. He directed that an appointment should be arranged within two to three weeks, as possible lymphoma is a matter that should be assessed on an urgent basis. [ 8 ] Dr. Sobey’s first visit with Ms.

Gilberds was in the outpatient department of the Grey Nuns Hospital on October 29, 1999. He arranged for her to have blood tests and an ultrasound examination that same day, and a second visit in his office on November 3, 1999, after the results were available. [ 9 ] On the first visit, Dr. Sobey noted that Ms. Gilberds had a two month history of night sweats. Night sweats may be a symptom of lymphoma, but are also a known side effect of Prozac, which Ms. Gilberds had been taking until about three weeks earlier. From his physical examination, Dr.

Sobey felt the nodes to be enlarged but small, about one cm in diameter. Dr. Sobey advised Ms. Gilberds that there might be a concern of lymphoma, but tests needed to be done to investigate this. He advised her it was likely the nodes were reactive adenopathy (a benign swelling, possibly in response to an infection). However, lymphoma was a realistic concern given her age, the enlarged nodes and the nights sweats, and due to the fact that other explanations for enlarged nodes, such as infection or mononucleosis, were not present.

The only way to obtain a definitive diagnosis was through an excisional node biopsy, a procedure where Dr. Sobey would physically remove an enlarged lymph node. A fine needle biopsy would not provide a definitive answer. 2. The Decision to Operate [ 10 ] On the second visit, Dr. Sobey reviewed the ultrasound results with Ms. Gilberds and repeated his physical examination and history. The ultrasound indicated that the lumps were two lymph nodes, one measuring 1.2 x 0.9 x 0.2 cm and the other 1.1 x 0.6 x 0.2 cm, both normal in appearance. No other masses or abnormalities were observed in the neck.

The blood tests were normal. Dr. Sobey advised Ms. Gilberds that it was his impression that the lymph nodes were likely benign. However, lymphoma could not be ruled out.

[ 11 ] Dr. Sobey told Ms. Gilberds that a CT scan should be done to rule out other “occult” sources of the nodes (i.e., another cancer that had metastasized). He also wanted a CT scan because he had sometimes been “disappointed” in ultrasound results, which had identified other types of fatty tissue as lymph nodes. [ 12 ] It was during the second visit that Dr. Sobey reviewed Ms. Gilberds’ options with her and with her mother, who had attended the appointment with her.

He told them that it was his opinion that the nodes were likely benign, and she could take a conservative approach and simply monitor the nodes and see him for a re-examination in two months. The risk of conservative management was that cancer, if present, could progress during that interval. But, provided Ms. Gilberds was reliable in terms of returning for follow up, that cancer could be picked up soon enough. [ 13 ] Alternatively, Ms. Gilberds could undergo a lymph node biopsy. This would provide a definitive answer as to whether the nodes were malignant. However, there were risks associated with the surgery.

Dr. Sobey reviewed these risks and noted them on the reverse side of a consent form signed by Ms. Gilberds. Under the heading “Risks” he noted “1) nerve injury: CN11; 2) bleeding 1-2%; and 3) infection 1-3%”. He also drew a diagram of a neck that located the enlarged lymph nodes and the area where nerves were present. [ 14 ] The CN11 (Cranial Nerve 11) is also known as the spinal accessory nerve, or SAN. Dr. Sobey advises patients that, if that nerve is injured, the injury would potentially and probably be permanent. An injured patient would be unable to lift the shoulder, and it would be painful. Dr.

Sobey recalled meeting with Ms. Gilberds and her mother and discussing the surgical and non-surgical options and associated risks. He described the content of the discussion by reference to his usual practice. Dr. Sobey testified he was satisfied that he had followed his usual practice because of his notes and the diagram. [ 15 ] Ms. Gilberds recalled meeting with Dr. Sobey, and recalled that her mother was there. She recalled that Dr. Sobey thought it was unlikely that she had lymphoma, based on the tests.

She recalled that the options were to wait and watch the nodes, or an excisional biopsy, which was the only definitive test. A fine needle biopsy would not provide a definitive answer. Ms. Gilberds recalled that she or her mother asked for advice, and that Dr. Sobey answered that, if it were his daughter, he would probably be on the fence and might consider waiting and watching it, but his wife would insist on the surgery. She did not recall a discussion of the risk of nerve damage, although she believed he had drawn the diagram on the form during the visit. [ 16 ] Ms. Gilberds’ mother, Mrs.

Gilberds, also recalled Dr. Sobey telling them that, if it were his daughter, he would want to monitor for a few months but his wife would insist on surgery. [ 17 ] Dr. Sobey testified that he did not recall making a comment about his wife’s views and did not believe he would have, as he did not discuss his family with patients. Further, his wife would have been very reticent regarding surgery, so he did not believe he would have said that she would insist on surgery. [ 18 ] Both Ms. Gilberds and Mrs. Gilberds were clear that they wanted a definitive diagnosis regarding the possibility of cancer. Mrs.

Gilberds said that she felt surgery was a foregone conclusion, as it was the only way to know for sure. Ms. Gilberds acknowledged that she wanted a definitive answer as soon as possible, which she would not get by following the wait and watch option. She elected to proceed with surgery and signed the consent form on November 3, 1999. Ms. Gilberds was aware that she could cancel the surgery at any time. [ 19 ] Dr. Sobey requisitioned a CT scan. It was initially scheduled for December 20, 1999, but, following a discussion between Dr. Sobey and the radiologist, was re-scheduled for December 1st. Ms.

Gilberds and her mother were calling and anxious. [ 20 ] Dr. Sobey received the following results from the CT scan on December 3 rd : There are a few tiny nodes evident in the posterior triangles bilaterally. The nodes measure up to 4 to 5 mm, are nonspecific and may be reactive. No larger nodal masses are evident. No lesions involving the mucosa or parapharyngeal space. Impression: Nonspecific, minor posterior triangle adenopathy; ? Reactive.

[ 21 ] The CT scan thus confirmed the two things that Dr. Sobey wanted before proceeding with a biopsy: that there were no other occult sources for the enlarged nodes, and that the target masses were, in fact lymph nodes. The lymph nodes as observed on the CT scan were smaller than noted on the ultrasound, “up to 4 to 5 mm”. Dr. Sobey testified that a measurement on a CT scan depends on the location of the radiographic cuts, and measures, at most, only two dimensions of a three dimensional object. He had not obtained the CT scan to measure the size of the lymph nodes.

He was aware from his physical examination of the nodes that they were at least one cm in size. 3. The Enlarged Lymph Nodes are Removed [ 22 ] The surgery was scheduled for December 14, 1999. Ms. Gilberds did not recall discussing the CT scan results or treatment options when she saw Dr. Sobey before the surgery. There was clearly some discussion, as Dr. Sobey noted on his operative report that Ms. Gilberds advised him that her night sweats had ceased. Dr.

Sobey’s report also notes that they “talked about either conservative management or cervical lymph node biopsy and the patient has elected to proceed with the same.” Dr. Sobey’s report referred to the CT scan which “again showed very small 3 to 4 mm nodes” and Dr. Sobey recalled that he did advise Ms. Gilberds about the CT scan when discussing her options. Ms. Gilberds wanted to know for sure whether she had cancer and the only way to do that was to proceed with the open biopsy. Dr. Sobey said that he felt her lymph nodes and marked one with an indelible marker for excision. Ms.

Gilberds also recalled him marking the lymph node. Dr. Sobey testified that when you can feel a lymph node and mark it easily, you know that it is a least one cm in size and is enlarged. [ 23 ] At the time of the surgery on Ms. Gilberds, Dr. Sobey had performed this procedure over 100 times, as he knew because of records he kept during the period of his residency. While it was a relatively common procedure, he testified that he recalled this specific surgical procedure both because Ms. Gilberds was an anxious patient and because he was assisted by Dr.

Howard Evans, a resident who subsequently became a good friend. He and Dr. Evans had not performed surgery together often; he believed this was the only time they performed a lymph node biopsy together. Dr.

Sobey testified that he recalled that the surgery proceeded “as dictated” in his operative report, and that there were “no issues”. [ 24 ] The evidence regarding techniques for performing a lymph node biopsy or other surgery where there is a risk of nerve damage is that there are two generally acceptable techniques to avoid nerve damage: 1. first identify the location of the nerve that is susceptible to being damaged, and once located then avoid the nerve during the subsequent procedure; or 2. carefully expose the target structure to be removed or investigated, while watching to see whether there is a nerve in the area of the surgery.

Dr. Sobey used the latter technique. He stated in his operative report that “we spent time looking for any nerves but none were adherent to the nodes.” [ 25 ] Dr. Sobey removed two adjacent lymph nodes, which he noted in his operative report to be “two small nodes as per the CT scan, approximately 3 to 5 mm in diameter”.

He testified that “3 to 5 millimetres is very small” and he “would not have removed a three millimetre node.” He did not measure the nodes when he removed them, and he knows, because of the post-surgery pathology report, that the nodes removed were larger than what he had recorded. [ 26 ] The removed nodes were sent for pathology investigation, including lymphoma markers. The action taken is noted in the “Clinical History”

section of the pathology report as follows: “2 small lymph nodes. One sent for T&B cell markers to CCI. One is bisected and put in B5 fixative.” This is followed by the “Gross Description”

section of the report, which states: “Two lymph nodes. The specimen consists of a bisected piece of lymphoid tissue 9 mm in widest diameter.” The report goes on to provide a microscopic description of the lymph nodes and their structures, and concludes that the lymph node tissue is benign. Ms. Gilberds did not have cancer. 4. Post-Operation Examinations and Treatment

[ 27 ] A note on the hospital chart indicates that at 1:35 p.m. Dr. Sobey saw the patient, and neither he nor the patient had concerns. Dr. Sobey testified that it was his standard practice, following this type of surgery, to examine for damage to the spinal accessory nerve. The practice he “always” followed was to perform three tests: 1. the patient turns their head, and Dr. Sobey would then palpate the sternocleidomastoid muscle, which should be tight; 2. the patient puts their hands on their shoulders and raises their shoulders, and Dr.

Sobey would then palpate the trapezius muscle, which should be contracting; and 3. the patient pulls their arms across their chest and Dr. Sobey would observe ensure that the scapula is not winging out. [ 28 ] Ms. Gilberds did not recall this examination, nor much else about this attendance with Dr. Sobey. [ 29 ] Dr. Sobey saw Ms. Gilberds for a routine follow up examination on December 29, 1999. He saw her in the emergency department as his office was closed that day.

He testified that he would have followed his standard practice and again performed the three-part examination of the spinal accessory nerve’s operation. His notes indicate “Healing well. No concerns. Advised re pathology”. Ms. Gilberds asked for a note regarding a missed university examination, and Dr. Sobey noted this and later prepared a letter and sent it to the Faculty of Arts. He also sent a note to Dr. Ference, in which he noted that he had seen Ms. Gilberds, that she was reassured with the pathology results, and that the neck wound was healing nicely. He also advised Dr.

Ference how to manage the suture. [ 30 ] Ms. Gilberds recalled seeing Dr. Sobey in the emergency department, and recalled that he did a “general examination”, but did not recall specifically the three-part examination. She also recalled that she mentioned that she had a “frozen shoulder”, that Dr. Ference had called it that, and Dr. Sobey did a “brief physical examination” and said she was having “muscle spasms” in the shoulder. Dr. Sobey also commented that he did not see any nerves during the surgery. Ms. Gilberds mother had taken her to the hospital for the follow-up visit.

She recalled telling her mother that Dr. Sobey had told her about muscle spasms and told her to see Dr. Ference and get a referral for massage therapy. Mrs. Gilberds testified that it was her understanding, after the surgery, that her daughter had a muscle spasm, but did not testify that she was told this immediately following Ms. Gilberds’ follow-up visit with Dr. Sobey. [ 31 ] During the post-operative period, Ms. Gilberds saw her family physician on two occasions: on December 20, 1999 (before the follow-up with Dr. Sobey), and on January 3, 2000 (after the follow-up). Dr. Ference testified.

She did not recall the visits or Ms. Gilberds, but she was able to testify as to the contents of her notes and her note-taking practices. [ 32 ] Dr. Ference testified that her notes indicated that the purpose of the December 20 th visit, as noted by office staff when the appointment was made, was to “talk” and regarding spotting on a birth control pill. Her own notes indicate that the visit was “for suture removal”, that the “incision healed” and they “discussed OR report” and the pathology report which showed “frozen sections benign”. There was no note regarding shoulder complaints. Dr.

Ference testified that, if Ms. Gilberds had complained regarding loss of shoulder movement and pain, she would have documented this and followed up. [ 33 ] The January 3 rd visit dealt with two matters, one relating to depression medication and the second to a muscle spasm in the right upper back. Dr. Ference’s notes indicate that she referred Ms. Gilberds for massage therapy. [ 34 ] In early 2000, Ms. Gilberds pursued both massage therapy and physiotherapy for her shoulder. She saw a massage therapist on two or three occasions in January.

On the first treatment she fainted briefly when pressure was placed on certain points in neck or shoulder. A few weeks later she commenced physiotherapy. She first saw the physiotherapist on January 18, 2000. Clinic records indicate that Ms. Gilberds gave a history that she had undergone a lymph node biopsy on December 14 th , and that this resulted in right shoulder pain that developed into a “frozen shoulder”. She had trouble lifting and was unable to perform the normal duties of her job as a waitress.

[ 35 ] The physiotherapist diagnosed the problem as “shoulder impingement syndrome”, and recommended treatment including ice and at-home exercises. Ms. Gilberds returned for further physiotherapy on January 22 and 25, 2000. There was “some improvement” but the problem had not resolved. Additional exercises were prescribed. Ms. Gilberds did not return after January 25 th , and in April 2000 her file was closed. Ms. Gilberds testified that she had regained movement in her shoulder and the pain had diminished. [ 36 ] Ms. Gilberds saw Dr. Ference on a number of occasions in March, May, June and September of 2000.

During this period there was no note of any reference to complaints about muscle spasm or her shoulder. On January 11, 2001, Ms. Gilberds made an appointment to see Dr. Ference about her shoulder. Dr. Ference’s notes indicate tight trapezius muscles, and that there was a question, likely from Ms. Gilberds, as to whether there was scar tissue from the node biopsy. The notes indicate that, on examination, no scar tissue was palpable, and moderate muscle spasm was noted. Dr. Ference referred Ms. Gilberds to physiotherapy, but Ms. Gilberds did not attend.

There were a number of other visits throughout the year, with no indication that shoulder or muscle spasm were discussed again. 5. The Nerve Injury is Discovered [ 37 ] In mid 2003, Ms. Gilberds moved to Taiwan to teach English. She was there for two years. She was not having difficulty with day-to-day activities and did not see a physician or medical professional about her shoulder or neck. However, she did recall that it was during that time that it was suggested to her that her shoulder “looked strange”. She raised this with Dr. Oosterhuis (her new family physician after Dr.

Ference left the clinic) on her return from Taiwan in June 2005. Dr. Oosterhuis ordered an x-ray. The results of the x- ray were normal and no treatment was pursued at this time. [ 38 ] In late 2006, Ms. Gilberds was referred for physiotherapy for a knee problem. She related her history to the physiotherapist, Doug Gilroy, including concerns as to the appearance of her shoulder and having suffered a “frozen shoulder” following lymph node biopsy surgery. Mr. Gilroy examined her and advised her that he thought she had neurological damage and that she should arrange for neurological testing.

Arrangements were made through Dr. Oosterhuis. [ 39 ] On January 16, 2007, Ms. Gilberds saw Dr. Myles, a specialist in neurology. Dr. Myles observed that Ms. Gilberds had severe wasting and weakness of the right trapezius muscle. Nerve conduction studies and other tests confirmed damage to the spinal accessory nerve. Dr. Myles concluded that this damage occurred during the lymph node biopsy of December 14, 1999. Because of the passage of time, surgery to repair the nerve was no longer an option. The damage is permanent. C. Limitations Issue [ 40 ] This action was commenced on October 17, 2007.

The alleged cause of action relates to a course of treatment which had concluded by December 29, 1999. The Defendant has raised the limitation period as a defence. I find that Ms. Gilberds could not have known of her nerve damage, the injury for which she seeks a remedial order, until she received expert advice that she had suffered nerve damage. She did not receive such advice until she was seen by a neurologist on January 16, 2007, or, at the earliest, by a physiotherapist in late 2006. In either case, the Statement of Claim was filed in time. 1.

Law [ 41 ] The relevant sections of the Limitations Act , R.S.A. 2000, c. L-12 are: 2

(1) This Act applies where a claimant seeks a remedial order in a proceeding commenced on or after March 1, 1999, whether the claim arises before, on or after March 1, 1999. ...

3(1) Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim. [42] Section 3(1)(

a) is a statutory adoption of the common law discoverability principle, under which: ... a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or oughtto have been discovered by the plaintiff by the exercise of reasonable diligence. [Emphasis added.] (Central Trust Co. v. Rafuse, (SCC), [1986] 2 S.C.R. 147 at 224, 31 D.L.R. (4th) 481; relying on Kamloops v.

Nielsen, (SCC), [1984] 2 S.C.R. 2 at 40, 10 D.L.R. (4th) 641.) [43] While the discoverability principle informs the application of the section, it is also necessary to keep in mind the specificrequirements of the section: ... The statute specifies the type of knowledge that must have been available to the claimant in order to trigger the running of thelimitation period. The claimant must know or have been reasonably able to discover that: (

i) the injury occurred; (ii) the injury wasattributable to the conduct of the defendant; and (iii) the injury warrants bringing a proceeding. (De Shazo v. Nations Energy Company Ltd., 2005 ABCA 241, 367 A.R. 267 at para. 28) [44] In Sun Gro Horticulture Canada Ltd. v. Alberta Metal Building Sales Inc., 2006 ABCA 243 at paras. 10-11, 273 D.L.R.(4th) 295, and more recently in Gayton v.

Lacasse, 2010 ABCA 123 at paras. 18-19, 482 A.R. 179 the Alberta Court of Appealconfirmed that under the Limitations Act the limitation period runs from discoverability of the injury, not discoverability of a cause ofaction, and further, that separate limitation periods may arise where there are different injuries arising from the same cause. 2. Analysis [45] The issue is thus: did the Plaintiff know or could she have discovered with reasonable diligence that the injury for which she

seeks a remedial order had occurred, that it was attributable to conduct of the defendant, and that the injury warranted bringing a proceeding, before the diagnosis of nerve damage? [ 46 ] The Defendant argues that immediately following the surgery the Plaintiff had all of the knowledge that she needed to commence the running of the limitation period. Prior to the surgery, Ms. Gilberds had been advised that damage to the spinal accessory nerve is a recognized potential complication of this procedure.

Shortly after the surgery, she experienced pain and mobility problems in her shoulder. [ 47 ] The Plaintiff reported to her family physician by January 3, 2000 that she was experiencing a muscle spasm in the right upper back. On January 18, 2000, Ms. Gilberds complained to a physiotherapist at Nor-Med Orthopedic and Sport Rehabilitation Centre of right shoulder pain which developed into a “frozen shoulder”.

She attributed this pain to the lymph node biopsy. [ 48 ] Regarding the first question, when did the Plaintiff know or was she reasonably able to discover that the injury for which she seeks a remedial order had occurred, it is necessary to distinguish between the permanent nerve damage which was diagnosed in January 2007, and temporary muscle pain and mobility issues that the Plaintiff was treated for shortly after the surgery. The Plaintiff is seeking a remedial order for nerve damage, not muscle pain.

The Sun Gro and Gayton decisions indicate that separate limitation periods may arise where there are different injuries arising from the same event, thus, while the limitation period with respect to muscle pain may have expired, that does not necessarily mean that the limitation period with respect to nerve damage has expired. [ 49 ] I do not accept the Defendant’s argument that, because the Plaintiff was experiencing shoulder pain and immobility, and because she had been advised about the potential for nerve damage resulting from the surgery, she should have connected these two facts and initiated investigations into potential nerve damage.

The Plaintiff consulted her family physician and a physiotherapist about her pain and mobility problems, and neither of them suggested that there was any potential concern about nerve damage.

I do not accept that, simply because she was advised about a possible complication, the Plaintiff should be expected to pursue a different diagnosis than one provided by the medical experts. [ 50 ] Thus, I conclude that the Plaintiff did not discover and could not reasonably have been expected to discover the injury for which she seeks a remedial order until nerve damage was diagnosed in January 2007, and that, under s. 3(1) (a)(

i) of the Limitations Act , the two year limitation period did not commence to run until that time. [ 51 ] Alternatively, if this is not a case in which different injuries give rise to different limitation periods, the distinction between permanent nerve damage and temporary muscle pain also raises the third question in s. 3(1)(a)(iii) of the Limitations Act : did the Plaintiff know or was she reasonably able to discover that the injury warranted bringing a proceeding. [ 52 ] Temporary or occasional muscle pain may well not warrant the commencement of a medical malpractice lawsuit.

This is particularly the case where, as here, the pain subsides within a relatively short period of time and the Plaintiff is able to return to her normal activities. The Plaintiff testified that in the years following the surgery, shoulder pain was not so much of an “ongoing concern” as “a concern at various moments”. Obviously the Plaintiff concluded that the pain that she experienced from time to time did not warrant bringing a medical malpractice lawsuit.

The pain did not interfere with her employment or recreational activities, and she would have known that she could be treated with physiotherapy, if she so chose, during periods of greater discomfort. [ 53 ] The situation changed dramatically when she discovered that the pain was caused by permanent nerve damage, not susceptible to any form of treatment, which had caused muscle wasting and affected her appearance, and would continue to cause pain and mobility issues for the rest of her life. At this point the Plaintiff concluded that the injury was such as to warrant bringing a proceeding.

Both of the Plaintiff’s conclusions were, in my view, reasonable in the circumstances. Therefore, for this reason as well, I find that the limitation period did not commence to run until January 2007. D. Standard of Care [ 54 ] The Plaintiff alleges that the Defendant breached the standard of care in four distinct ways:

1. by failing to meet the standard of disclosure in providing advice about the risks and benefits of having an excisional biopsy versus conservative management; and thus failing to obtain informed consent to the surgery; 2. in proceeding with the excisional biopsy despite the evidence that the Plaintiff did not have lymphoma; 3. in the performance of the excisional biopsy; 4. post-operatively and during follow-up attendance on December 29, 1999, in failing to diagnose nerve injury and refer the Plaintiff to a plastic surgeon for repair of that injury. [ 55 ] The Plaintiff argues two defects in relation to informed consent: 1.

Dr. Sobey failed to properly explain the risk of spinal accessory nerve injury, and 2. Dr. Sobey should not have supported surgery as an appropriate alternative, given the risks associated with surgery as compared with the lack of risk associated with conservative management. [ 56 ] I will address the relevant evidence, law, and my conclusion in relation to the first issue, then turn to the second alleged failure to inform. 1. Informed Consent as to Risk of Nerve Injury a. Parties’ Evidence [ 57 ] There is not a great deal of dispute between the parties on how Ms.

Gilberds was informed during consultation about the proposed surgery. Potential spinal accessory nerve injury was discussed, along with the possibility of bleeding and infection. Dr. Sobey drew diagrams to illustrate the position of nerves and the enlarged lymph nodes. He explained the possible implications of nerve injury. [ 58 ] Notably, Dr. Sobey provided estimated probabilities for two of the plausible risks: bleeding as 1-2%, infection as 1-3%. He did not write an estimate of nerve injury frequency in his notes.

At trial, he confirmed that in 1999 he would have estimated the frequency of nerve injury during the proposed surgery as 5%. Dr. Sobey acknowledged he withheld that information: At that time, my feeling was that if you give a low percentage for something bad to patients, they – they don’t hear the 5 percent, that I can’t move my shoulder that I’m going to have life-long pain. They hear the 95 percent that I won’t.

And I think at the time my practice was to let patients understand this was a significant risk, when I was taught informed consent, we were told you had to provide information as to what the worst possible case scenario was so that people would change their mind, if they knew that, and that’s what I provided her. [ 59 ] Dr. Sobey testifed that he would have provided the 5% figure if asked, but otherwise “... would rather people just think on the fact that this can happen.”

b. Expert Testimony [60] Dr. James Nixon, general surgeon, testified on behalf of the Defendant in relation to Dr. Sobey’s explanation on the natureand risks of a lymph node biopsy. In his expert report he characterized the informed consent as “... a model for informed consents.” Attrial Dr. Nixon was asked whether a 5% risk of nerve injury ought to be disclosed to the patient. Though he concluded that, in hisopinion, a failure to disclose that risk would not be a breach of the standard of care and duty to inform, Dr.

Nixon did acknowledge thatomitting the probability of nerve injury was inappropriate: Q. ... assume that Dr. Sobey thought at the time that the risk of that injury, spinal accessory nerve injury materializing was fivepercent. Five percent is a fairly significant risk for something that he thought if it happened would be permanent or could be permanent,eventually disabling, correct? A. Correct. Q. A surgeon should not withhold information about the likelihood of a risk occurring because the physician thinks that telling themthat information might affect what decision they make, correct? A.

Correct. [61] The Plaintiff’s medical expert, Dr. William Simpson, did not provide evidence regarding whether Dr. Sobey had properlydisclosed the risks associated with a lymph node biopsy. c. Law: Informed Consent [62] Unauthorized physical contact is an assault. In the context of medical treatment, legal physical contact has two requirements.First, a patient must authorize or ‘consent’ to treatment. Second, the patient must be ‘informed’ of and understand the nature of thetreatment, and its risks and benefits.

Without both parts of ‘informed consent’, medical treatment is unauthorized. [63] Canadian courts have emphasized that informed consent is a crucial facet of the modern ‘patient-centred’ approach to medicallaw. Ultimately, the patient is the decision-maker: The right to determine what shall, or shall not, be done with one's own body, and to be free from non consensual medical treatment, is aright deeply rooted in our common law. This right underlies the doctrine of informed consent. ...

The fact that serious risks orconsequences may result from a refusal of medical treatment does not vitiate the right of medical self determination. ... It is the patient,not the doctor, who ultimately must decide if treatment — any treatment — is to be administered. (Fleming v. Reid (1991), (ON CA), 4 O.R. (3d) 74 at 85, 82 D.L.R. (4th) 298 (Ont.

C.A.), endorsed in Ciarlariello v.Schacter, (SCC), [1993] 2 S.C.R. 119 at para. 40, 100 D.L.R. (4th) 609) [64] Patients are not medical experts, so to choose appropriately they need information, provided by a health professional, to assistin deciding if and how they will be treated. Yamauchi J. in Dickson v. Pinder, 2010 ABQB 269 at para. 68, 489 A.R. 54 identified fivekinds of information that a patient should receive: 1. the medical practitioner’s diagnosis of the patient’s condition; 2. the prognosis of that condition with and without medical treatment;

3. the nature of the proposed medical treatment; 4. the risks associated with the proposed medical treatment; and 5. the alternatives to the proposed medical treatment, and the advantages and risks of those alternatives. [65] The disagreement between the parties on this first informed consent issue relates to the fourth item; the disagreement on thesecond informed consent issue relates to the fifth item. d. Law: Informing about Risks of Medical Treatment [66] Laskin C.J.C. in Hopp v.

Lepp, (SCC), [1980] 2 S.C.R. 192 at 210, 112 D.L.R. (3d) 67 provides the generalapproach of how to inform a patient of the risks associated with medical treatment: ... in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer anyspecific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of theproposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. ...[Emphasis added.] [67] In Reibl v.

Hughes, (SCC), [1980] 2 S.C.R. 880 at 884-885, 114 D.L.R. (3d) 1, at 884-885, Chief JusticeLaskin explained that “special or unusual risks” are a kind of “material risk”, material because of the nature of their consequences: 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 example, paralysis or even death, it should be regarded as a material riskrequiring disclosure. [Emphasis added.] [68] In that sense the two categories of risk are not different; both reflect a common underlying principle, that medical practitionersshould provide their patients with relevant information to assist the patient in making decisions that impact on the patient’s health andwelfare.

Both probable and very deleterious outcomes are always relevant. [69] Justice Cory in Ciarlariello v. Schacter, (SCC), [1993] 2 S.C.R. 119 at para. 35 100 D.L.R. (4th) 609reduced the question of material risk to its core, a relevant risk is a risk a patient would want to know: 35 In deciding whether a risk is material and therefore, one which should be explained to the patient, an objective approach should betaken. The crucial question in determining the issue is whether a reasonable person in the patient's position would want to know of therisk. [Emphasis added.] [70] In Kelly v.

Lundgard, 2001 ABCA 185 at para. 136, 202 D.L.R. (4th) 385 Conrad J.A. noted that risks have two elements, thenature of the risk, and the probability of the risk. See also Martin v. Findlay; Martin v. Capital Health Authority, 2008 ABCA 161 atpara. 7, 432 A.R. 165. [71] Justice Young in Munir v. Jackson, [2006] O.J. No. 1671 (QL) at paras. 7-10, 148 A.C.W.S. (3d) 151 (Ont. Sup. Ct. J.)provided a helpful

summary of the meaning of material risk:

7 A surgeon must disclose the material risks to the patient. Material risks are risks that would influence a reasonable person in thepatient's situation in making a decision to consent or refuse consent to the treatment. A material risk includes a risk that is a merepossibility if the occurrence of the risk would have serious consequences ... 8 Since Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880 (S.C.C.) and Hopp v. Lepp, the courts have been strugglingwith the term "material risks".

An objective approach is taken to decide whether a risk is material: "would a reasonable person in thepatient's position want to know of the risk?" It is now clear from subsequent decisions that doctors do not have a duty to disclose everyconceivable risk that may occur during a medical procedure. Nor does it appear that doctors are under an obligation to disclose commonrisks and possible rare risks. In Walker v.

Law (1986), (ON SC), 59 O.R. (2d) 46 at 47 (H.C.), Ewaschuk J. says: "[a]common risk is one known to all reasonable patients and a rare risk is one arising in a very low percentage of cases." 9 Material risks are significant risks that pose a real threat to the patient's life, health or comfort. In considering whether a risk ismaterial or immaterial, one must balance the severity of the potential result and the likelihood of its occurring: Hopp v. Lepp, supra;Rayner v. Knickle (1991), (PE SCAD), 88 Nfld. & P.E.I.R. 214; Berard v. Meszaros (1991), (MBKB), 77 Man. R. (2d) 86 (Q.B.); Walker v. Law, supra; White v.

Turner, supra. 10 A useful guide for the courts in determining which risks must be disclosed is found in Rawlings v. Lindsay (1982), 20 C.C.L.T.301 (B.C.S.C.) where McLachlin J. states at para. 10 that a medical person must disclose those risks to which a reasonable patient wouldbe likely to attach significance in deciding whether or not to undergo the proposed treatment. In making this determination, the degree ofprobability of the risk and its seriousness are relevant factors.

A court must balance the severity of the potential risk and the likelihood ofthe occurrence and consider the standards of the medical profession. In determining whether a surgeon has made proper disclosure, thecourt may consider the opinions of physicians and surgeons about the required scope of disclosure, but these opinions are notdeterminative. ... [Italics in original, underlining for emphasis.] [72] Ultimately, informed consent is “a fact-dependent threat assessment process”: Dickson v. Pinder, at para. 81. e.

Probability of Risk [73] In this case the positions of the parties and the evidence support the requirement to disclose and explain the risk of nervedamage as a material risk. I agree that this was a material risk.

Both the degree of probability of its occurrence (5%) and the nature of therisk (nerve damage which would potentially or even probably be permanent, and would affect movement and appearance of the shoulderand also cause pain) combine to make this a risk that a reasonable patient would want to know about in assessing whether or not toundergo an excisional lymph node biopsy. [74] In this case the risk itself was disclosed; Ms. Gilberds does not recall the discussion of nerve damage but it is clear from thesigned consent form that she was told about it. Further, I am satisfied based on Dr.

Sobey’s evidence that he would have described thenature of the risk in accordance with his usual practice. But the consent form and Dr. Sobey’s evidence indicate that he did not assign aprobability to the risk of nerve damage, even though he possessed that information and even though he had assigned probabilities to theother disclosed risks of bleeding or infection. [75] It is clear that informed consent requires the patient not only receive information but also understand that information.Communication must be effective. [76] Justice La Forest in Eldridge v.

British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624 at para.70, 151 D.L.R. (4th) 577 observed: 70 The centrality of communication to the delivery of medical services is particularly evident in the context of negligence law. The

duty of disclosure commands physicians to inform patients fully of the risks involved in treatment and answer their questions regardingsuch risks; see Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880, at p. 884, and Hopp v. Lepp, (SCC),[1980] 2 S.C.R. 192, at p. 210. ... See also Ciarlariello v. Schacter, at paras. 54-55. [77] In Martin v. Findlay; Martin v. Capital Health Authority, 2008 ABCA 161, 432 A.R. 165, the Alberta Court of Appealconsidered the manner in which risks should be disclosed. What is required is an explanation of the scope and nature of the potentialdeleterious result: 33 ...

The standard of care did not require that the surgeon disclose the mechanism of the risk. Mr. Martin was told of the risks of thesurgery which could result from a stroke. These included death, speech impairment and paralysis. He was told of the risk of the veryinjuries which occurred. [Emphasis added.] [78] A patient must be informed using language and an explanation that is appropriate to that patient.

A medical practitioner hasthe responsibility to ensure risks are disclosed and understood: 38 Cases in which the informed consent issue focussed on the patient's understanding of the risk disclosure reveal that thecircumstances of the patient and his or her capacity to understand are crucial to determining whether the physician has done enough topresent the information clearly.

Cases where physicians were found to have disclosed risks with insufficient clarity involved patientswith limited language comprehension ..., patients who were elderly and clearly resistant to discussing risks ..., unsophisticated patientswith limited education ..., and patients under emotional or physical distress ... [Citations omitted.] [79] In Matuzich v. Lieberman, [2002] O.T.C. 510, 115 A.C.W.S. (3d) 337 (Ont. Sup. Ct. J.), Justice Ferrier concluded effectivedescription of a risk involves three elements: 53 It is also my view that an explanation of risk involves three major elements.

The first is an adequate explanation of the procedureand the injury that may occur. The second is an explanation of the frequency or likelihood of the risk materializing (the "odds" of ithappening).

Thirdly, the physician must explain the consequences of the injury should it occur. [80] Picard, E.I. & Robinson, G.B., Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Carswell LegalPublications, 2007) at 149 stress the requirement for a doctor to do more than “merely” communicate the material risks, “in the sense ofthe degree (or statistical chance) of the risk materializing.” The doctor must also explain the nature and severity of the resulting injury. f.

Analysis [81] I agree with Ferrier J. that effective communication of treatment risks requires some information on the probability of aparticular result: Matuzich v. Lieberman. The degree of probability of a risk is obviously relevant to reasonable patients consideringwhether they want to undergo treatment; indeed the degree of probability is one of the factors that qualifies a risk as material. [82] While it may not be necessary in every case to assign a statistical probability to a risk, there are reasons why this should havebeen done in this case. First, Dr.

Sobey did possess that specific information; he was aware that the risk of nerve damage wasapproximately 5%. Second, Dr. Sobey did assign statistical probabilities to the risks of bleeding or infection. These risks in fact were lesslikely to occur than nerve damage: 1-2% and 1-3%, respectively. However, the way in which these risks were presented may havesuggested the contrary.

Where a number of risks are identified and some outcomes are assigned defined probabilities, a reasonablepatient may conclude that the risk which has no statistic associated with it is less probable than the other disclosed risks. [83] In the context of this case, Ms. Gilberds may have very plausibly concluded that if her doctor said bleeding and infection riskswere 1-2% and 1-3%, respectively, that the probability of nerve injury was substantially less than bleeding and infection.

After all, whywould a surgeon seem to set out the odds of two outcomes, but then leave a more serious potential consequence as a vague generality?Ms. Gilberds could reasonably expect that Dr. Sobey would understand that she would want to know a detailed threat profile for the most

serious and most probable negative outcome of the proposed surgery. [ 84 ] I conclude that, while Dr. Sobey did explain the risk and its consequences, his omission of the key fact of its statistical probability of occurring impaired Ms. Gilberds’ ability to weigh the risk. The seriousness of the omission is exacerbated by the fact that statistical probabilities were assigned to less likely and less serious risks, with the result that Ms. Gilberds not only lacked significant information, but may have been misled into thinking that the risk of nerve damage was substantially less than was, in fact, the case. 2.

Informed Consent as to Appropriateness of Surgery [ 85 ] The Plaintiff argues that Dr. Sobey should not have supported surgery as an appropriate alternative, given the risks associated with surgery as compared with the lack of risk associated with conservative management. [ 86 ] Both Ms. Gilberds and her mother recalled that they asked Dr. Sobey for advice as to whether to proceed with the biopsy, and he advised that, if it were his daughter, he would wait and see for a few months, but his wife would insist on the surgery.

The Plaintiff interprets this as essentially advice that surgery was the recommended alternative. [ 87 ] The Defendant denies the comment, and also disputes the inference from it, if made. [ 88 ] I accept that the Plaintiff has proven on a balance of probabilities that a comment of this nature was made. Both Ms. Gilberds and her mother recalled very similar words. There was a personal quality to the comment that seems to have made an impact on them and caused them to recall the comment. While Dr.

Sobey may not discuss his family as a general rule, and may now, more than 10 years later, have a different assessment about what his wife would want in the circumstances, I believe that he did, on this occasion, make the comment that is recalled. [ 89 ] Does the comment amount to a recommendation of surgery? In my view, it does not. It amounts only to a recognition that reasonable people could come to different decisions as to whether or not to proceed with a biopsy, and that the decision could not be determined by medical expertise, but had to take into account personal factors, as well.

Despite the comment, Ms. Gilberds remained aware that Dr. Sobey thought it was unlikely that she had lymphoma, and that a reasonable approach was to wait and watch the nodes. An alternative, also reasonable, approach was to proceed with an excisional biopsy to obtain a definitive answer as to her diagnosis. [ 90 ] The Plaintiff argues not only that Dr.

Sobey should not have recommended surgery as the preferred alternative, which I have found he did not do, but that he should have recommended against surgery because of the risks associated with surgery as compared with the lack of risk associated with conservative management.

This latter argument is more directly dealt with in the second alleged breach of the standard of care, that there was a breach of the standard of care in proceeding with the excisional biopsy despite the evidence that the Plaintiff did not have lymphoma. [ 91 ] I will address the argument as to whether it was appropriate to perform the biopsy, or to make it an available treatment option, in the next

section of these reasons. However, assuming at this point the biopsy was appropriately presented as a treatment option, I reject the notion that Dr. Sobey was required to recommend against it. That notion goes directly against the whole concept of the ‘patient-centred’ approach to medical law, in which the patient, armed with appropriate information, is the decision-maker as to what, if any, treatment he or she will undergo. 3. Would Ms.

Gilberds Have Undergone Surgery if Properly Informed? [ 92 ] A failure to inform and obtain consent can lead to an award in tort only if a patient would not have agreed to the treatment if properly informed of the treatment, its risks, and alternatives. This rule relates to causation: one person only injures another when that person causes the other’s injury. A health professional causes an injury when that health professional’s information and advice changes the form of treatment that a patient would have chosen.

a. Law [93] The legal test for this analysis is clearly established. In Reibl v. Hughes, Laskin C.J.C. considered the question of whether apatient’s hypothetical choice would be to engage in or refuse treatment. This assessment is taken from the perspective of the specificpatient and the patient’s “particular concerns”, and in that sense the test is ‘subjective’.

As a consequence, “[f]ar from making thepatient’s own testimony irrelevant, it is essential to his case that he put his own position forward.” (at p. 899). [94] Nevertheless, a concern must be objectively reasonable (pp. 899-900), when viewed from the perspective of a reasonableperson in the patient’s circumstances: 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 clearthat the patient's particular concerns must also be reasonably based ...

In short, although account must be taken of a patient's particularposition, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness. [Emphasis added.] [95] This “objective/subjective” approach was further explained by Justice Cory in Arndt v. Smith, (SCC),[1997] 2 S.C.R. 539 at para. 6, 148 D.L.R. (4th) 48: ... The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to discloseactually caused the harm of which the plaintiff complains.

It requires that the court consider what the reasonable patient in thecircumstances of the plaintiff would have done if faced with the same situation.

The trier of fact must take into consideration any“particular concerns” of the patient and any “special considerations affecting the particular patient” in determining whether the patientwould have refused treatment if given all the information about the possible risks. [Emphasis in original.] [96] The scope of these “particular concerns” and “special considerations” is a question of the court evaluating the patient’scharacter, life, objectives, and concerns (at para. 9): In my view this means that the “reasonable person” who sets the standard for the objective test must be taken to possess the patient’sreasonable beliefs, fears, desires and expectations. [Emphasis added.] [97] Those may be revealed by the objective actions of the patient, such as the focus of their questions (para. 9), or by professionalor recreational interests (paras. 10-11). [98] Apprehensions or priorities that are objectively irrational or unconnected from a potential consequence of treatment are notreasonable (at para. 13), and therefore cannot be imputed to the ‘reasonable person in the patient's position’: ... purely subjective fears which are not related to the material risks should not be taken into account in applying the modified objectivetest.

In other words, fears which are idiosyncratic, which do not relate directly to the material risks of a proposed treatment and whichwould often be unknown to a physician, cannot be considered. This is what ensures that the objective standard truly is based on theactions of a “reasonable person”. [Emphasis added.] b. Evidence [99] Ms. Gilberds’ personal characteristics are central to this analysis. Her testimony and that of her mother and Dr. Sobey areconsistent as to Ms. Gilberds’ perspective and objectives in relation to the unexplained swollen lymph nodes. [100] Dr.

Sobey explained that in his opinion the enlarged nodes were likely benign and that cancer was a less probable alternative.He advised Ms. Gilberds that she could wait several months to see whether the nodes underwent change. Nevertheless, lymph node

biopsy and physical examination of excised nodes was the only definitive way to exclude cancer. [ 101 ] The evidence is clear that the principle focus and concern for Ms. Gilberds and her mother was the possibility of a cancer. Dr. Sobey described both as “anxious” and I think that is a fair characterization. It seems the focus of her inquiries to Drs. Ference and Sobey involved the risk and progression of lymphoma. [ 102 ] At trial Ms. Gilberds was explicit, in 1999 she wanted a definitive evaluation of whether the swollen nodes indicated cancer, and she wanted that information sooner rather than later: Q.

Your concern at this visit with Dr. Sobey was still whether or not you had lymphoma? A. Correct. Q. And you wanted a definitive diagnosis? A. Correct. Q. And you wanted it as soon as possible? A. Correct. Q. Even though you knew it was unlikely that this was lymphoma? A. Correct. [ 103 ] Ms. Gilberds’ mother testified that, when she went with her daughter to the appointment with Dr. Sobey, she felt that surgery was a foregone conclusion, as it was the only way to know for sure whether there was cancer. [ 104 ] When Ms.

Gilberds underwent the surgery, she missed a university fall semester final exam as a result. c. Analysis [ 105 ] I conclude that Ms. Gilberds was focused on finding out whether or not she had cancer. She was frank in her testimony - when she consulted with Dr. Sobey her first priority was to know whether she had a developing lymphoma and she wanted to know that now. Further, she prioritized the timing of the biopsy in manner that was, at the very least, inconvenient for her education. This conduct is evidence of the high priority Ms.

Gilberds placed on immediate and definitive diagnosis of the cause of her enlarged neck lymph nodes. [ 106 ] Ms. Gilberds had a fear of cancer and I cannot say that concern was irrational or a “purely subjective fear”. The biological mechanism of cancer means early diagnosis and treatment often reduces morbidity and mortality. Dr. Sobey testified that this is the case in relation to lymphoma. [ 107 ] A one in twenty chance of permanent and disfiguring nerve damage and muscle dysfunction could plausibly be an objective

basis on which a person would choose to defer lymph node dissection surgery to evaluate a possible but low probability risk of cancer. Some ‘surgery averse’ patients might very well take that route, if fully informed of all the risks and benefits. I conclude, on a balance of probabilities, that Ms. Gilberds was not one of those persons. Her heightened concern towards the possibility of cancer leads me to conclude that she would have proceeded with the biopsy surgery on December 14, 1999, even if Dr. Sobey had informed her of the statistical probability of the risk of spinal accessory nerve injury.

That choice is one that is objectively reasonable for a person with Ms. Gilberds’ personal characteristics. [ 108 ] As a consequence, Dr. Sobey’s breach of the standard of care in relation to obtain informed consent did not cause Ms. Gilberds’ injury. 4. Negligent Treatment [ 109 ] I have concluded that while Dr. Sobey breached his duty of care to properly inform Ms. Gilberds of the risk of nerve injury in the proposed lymph node biopsy, he is not liable on that basis as Ms. Gilberds would have nevertheless ordered that surgery even if she had been fully informed of the risks of that procedure.

What remains is the possibility that Dr. Sobey was negligent in the manner in which he executed his patient’s instructions. [ 110 ] The Plaintiff’s argument here has three parts: 1. any surgery was negligent as the procedure was never warranted, 2. the surgery was performed in a negligent manner, and 3. post-surgical examinations were negligent as the examinations did not detect the injured spinal accessory nerve. I will review each kind of alleged misconduct separately. a. Decision to Proceed with the Biopsy [ 111 ] Dr. William Simpson, general surgeon, testified on behalf of the Plaintiff.

It was his opinion that prior to the surgery, given the examinations, history and the results of the tests that were done (including the ultrasounds, CT scan and blood work), there was no indication for Dr. Sobey to proceed with the operation. The size and position of the lymph nodes was such that in his opinion they were clearly reactive. The fact that Ms. Gilberds was experiencing nights sweats, which in any event had ceased by the time of the surgery, was not sufficient to warrant a surgical investigation for lymphoma. [ 112 ] On examination, Dr.

Simpson clarified that the size of the lymph nodes was the most important factor in determining whether there should be an investigation for lymphoma. Nodes of five millimetres or less (as revealed in the CT scan) are very small and do not pose any realistic risk of cancer. To warrant investigation for lymphoma, the nodes must approach one centimetre in size. [ 113 ] Dr. Simpson did not consider the measurements of the nodes obtained on the ultrasound test to be accurate. In his view the size shown on the CT scan was more accurate.

He noted that size can also be estimated during the surgeon’s clinical examination. [ 114 ] Dr. Sobey agreed that a three to five millimetre node would be very small, and testified that he would not have removed such a small node. He had determined that the nodes were at least one centimetre in size during his physical examinations, including immediately prior to the surgery. In his view the ultrasound test gives a reasonable indication of size, while the CT scan does not, as the latter measurement is only two dimensional and planar, and depends on the location of the radiographic cuts. A single

section through an asymmetrical three-dimensional object may not accurately indicate that object’s maximum dimensions.

[ 115 ] That is precisely the situation here. Dr. Sobey noted that his pre-operation lymph node size estimate was borne out by the pathology result, which indicated that one of the two nodes removed was nine millimetres in its widest diameter. This measurement was made was after the node had been fixed in formaldehyde, which will dehydrate the tissue and cause it to contract. [ 116 ] Dr. James Nixon, testifying on behalf of the Defendant, indicated that a lymph node one centimetre in its maximum dimension is a cause for concern, and a 1.5 centimetre lymph node would suggest a malignancy.

On the other hand, it would be very rare that a lymphoma would cause a lymph node five millimetres in size. In Dr. Nixon’s view the size of the node as measured on a CT scan is not important in considering whether there may be lymphoma, as the CT scan is not accurate regarding size. He considered an ultrasound measurement as more accurate. [ 117 ] The Plaintiff has not proven an important fact relied upon by Dr.

Simpson as a basis for his conclusion that it was a breach of the standard of care to perform the lymph node biopsy, namely that the lymph nodes in the Plaintiff’s neck were five millimetres or less in size. Dr. Simpson agreed that a one centimetre node would warrant investigation for lymphoma, and that the only way to rule out lymphoma was by performing an excisional biopsy. Dr. Simpson’s reliance on the CT scan to determine the size of the nodes is contradicted by other evidence. It is clear, as noted by Dr.

Sobey, that the CT scan can only provide incomplete evidence of two dimensions of the node, which supports the position taken by Dr. Sobey and Dr. Nixon that CT scan measurements should not be relied upon to determine the size of the node. [ 118 ] Dr. Simpson himself noted that the size of the node is best determined upon physical examination, and Dr. Sobey was certain that he had determined that the nodes were at least one centimetre on his physical examination.

This estimation of size is supported by the ultrasound measurements, and, most significantly, by the pathology examination. [ 119 ] Counsel for the Plaintiff argued that the reference in the pathology report to a specimen nine millimetres in widest dimension likely referred to the combined size of two nodes removed by Dr. Sobey during the biopsy. He pointed out that Dr. Sobey noted in his operative report that he removed “two small nodes as per the CT scan, approximately 3 to 5 mm in diameter”.

But the pathology report does not read as counsel suggests: it states that one node was sent to the Cross Cancer Institute for testing, and one was bisected and put in fixative. The measurement subsequently reported relates to a

section of lymphoid tissue from the bisected node, and that

section was nine millimetres across. As to the size noted on the operative report, Dr. Sobey testified that he simply repeated the measurement from the CT scan. [ 120 ] The onus is on the Plaintiff to establish the facts relied upon by the expert in formulating his opinion that it was a breach of the standard of care to proceed with the excisional biopsy. This onus has not been met. b. Performing the Biopsy [ 121 ] Dr. Simpson gave the further opinion that Dr. Sobey breached his the standard of care by the manner in which Dr. Sobey performed the excisional biopsy. Dr. Simpson states that Dr.

Sobey should have first located and identified the spinal accessory nerve during the course of surgery in order to ensure that there was no danger of causing damage to it during the surgery. The fact that the nerve was cut or damaged during the surgery was, in Dr. Simpson’s opinion, a strong indication that Dr. Sobey failed to meet the required standard of care. [ 122 ] Both Dr. Nixon and Dr. Mark Haugrud, a plastic surgeon, gave evidence on behalf of the Defendant in relation to operating techniques where nerves are involved and potentially at risk.

Both testified that there are two generally acceptable techniques for avoiding nerve damage, either first identifying the location of the nerve that is susceptible to being damaged, and avoiding it; or exposing the structure to be removed, and at the same time checking to see whether there is a nerve in the area of the surgery. Both testified that the latter technique, which was employed by Dr. Sobey, was preferable. In their view the technique of hunting for the nerve can increase the risk of nerve damage because the scope of the surgery is expanded. Dr. Nixon also testified that Dr.

Sobey’s surgical methods complied with the standard of care in relation to the use of this technique and in all other respects. [ 123 ] In a rebuttal opinion and in his testimony at trial, Dr. Simpson agreed that the technique employed by Dr. Sobey can be an acceptable approach. He gave the opinion that it was not acceptable in this case for two reasons:

1. the very small lymph nodes, measuring only five millimetres in size, would be difficult to identify; staying close to the very smallnodes would be difficult and that would increase the risk of Dr. Sobey’s approach; and 2. the fact that the nerve was damaged indicates that Dr. Sobey cannot have used meticulous technique. [124] Again, Dr. Simpson’s assumption that the nodes were only five millimetres in size is not supported by the evidence, so hisopinion that the technique was inappropriate on this basis is of no assistance to the Plaintiff. [125] When he testified, Dr.

Simpson clarified that his primary basis to conclude that there was not meticulous care in theperformance of the surgery was that an injury occurred. He was unable to identify any features that have been identified in medicalliterature as associated with an increase in the incidence of nerve damage during lymph node biopsies, such as shortcomings in relation tosurgical technique, the operating room facilities, or the qualifications of the surgeon or other medical personnel. On cross-examination,Dr.

Simpson conceded that damage to the spinal accessory nerve is a recognized complication of this surgery, and that it is possible fornerve injury to occur even when appropriate care is taken. This is consistent with the evidence of the Defendants’ expert witnesses. [126] There are cases in which the occurrence of an injury in itself gives rise to an inference of negligence, as I discussed in Chasse v.Evenson, 2006 ABQB 342, 399 A.R. 121. These cases are the exception, not the rule. The burden of proof to establish negligence is onthe Plaintiff.

Generally, an inference of negligence should not be drawn merely from the existence of an event that gives rise to injury.Picard & Robertson refer to this principle in the context of medical accidents: “Of course not every medical accident speaks ofnegligence. Accidents can and do happen without negligence” (supra at p. 308). [127] Courts have repeatedly warned that the conduct of the doctor is not to be judged by the result: see Rhine v. Millan, 2000 ABQB212 at para. 67, 263 A.R. 201; Clare v. Ostolosky (2001), (AB KB), 300 A.R. 341, [2001] A.J. No. 1492 at para. 33(QL) (Alta. Q.B.).

The question of whether an inference of negligence should be drawn is “highly dependent on the circumstances ofeach case”: Fontaine v. British Columbia (Official Administrator), (SCC), [1998] 1 S.C.R. 424 at para. 35, 156D.L.R. (4th) 577. [128] I am satisfied that this is not a case in which an inference of negligence should be drawn from the fact an injury occurred. Theevidence made it clear that nerve injury is a recognized potential complication of this surgery.

Medical literature referred to by Dr.Simpson surveyed problems with surgical techniques, personnel and facilities that are associated with a higher risk of nerve injury, butdid not suggest that the risk of injury could be eliminated by proper care. [129] None of these problems identified in the literature were present in this case. The evidence is that nerve injury can happen in theabsence of negligence.

To infer negligence in this case would effectively reverse the burden of proof. [130] Further, a physician will not be in breach of the standard of care by choosing to follow one of several reasonable courses ofaction: Keller (Next friend of) v. Penkoske, 1999 ABQB 912 at paras. 273, 276-77, 256 A.R. 1, affirmed 2004 ABCA 4, 348 A.R. 54;Kaban v. Sett (1993), (MB KB), 90 Man.R. (2d) 26, 43 A.C.W.S. (3d) 1015 (Man. Q.B.), affirmed (1994) (MB CA), 97 Man.R. (2d) 185, 50 A.C.W.S. (3d) 908 (Man. C.A.), leave refused [1996] S.C.C.A. No. 39.

The expertsagreed there are two reasonable approaches during surgery to minimize risk of nerve injury, and that Dr. Sobey had selected one of thosetwo alternatives. [131] The Plaintiff has failed to prove that Dr. Sobey breached the standard of care in the performance of the surgery. To the contrary,all of the evidence supports the Defendant’s position that the standard of care was met in all respects in relation to the performance of thesurgery. c Post-operative Care [132] The Plaintiff alleges that Dr. Sobey failed to meet the standard of care post-operatively and during the follow-up examination on

December 29, 1999, in that he failed to diagnose nerve injury and refer the Plaintiff to a plastic surgeon for urgent repair of that injury. [ 133 ] I have already reviewed the parties’ evidence regarding post-operative care. Dr. Sobey testified that he saw Ms. Gilberds shortly after the surgery on December 14 th and again in a follow-up visit on December 29 th . He would have performed a three-part test for spinal accessory nerve damage on both occasions, because this was the practice he always followed. Hospital records indicated neither he nor Ms. Gilberds had any concerns during the post-surgery visit.

On December 29 th , Dr. Sobey’s notes indicate “no concerns”. [ 134 ] Ms. Gilberds recalled having shoulder pain from the evening after the surgery. She recalled seeing Dr. Sobey in the follow-up visit, and that he examined her although she did not recall the specifics of the examination. She recalled telling him that she had a “frozen shoulder”, that Dr. Ference had called it that, and that Dr. Sobey told her she was having “muscle spasms” and that she should see Dr. Ference for a referral for massage therapy. [ 135 ] Ms. Gilberds saw Dr. Ference on December 20, 1999 (before the follow-up with Dr.

Sobey) and on January 3, 2000 (after the follow-up). Dr. Ference’s notes of the December 20 th visit make no reference to shoulder issues. Her notes of the January 3 rd visit refer to a muscle spasm in the right upper back, and a referral for massage therapy. The notes do not include any reference to Dr. Sobey. [ 136 ] The issue regarding compliance with the standard of care post-operatively turns on whether Ms. Gilberds reported shoulder pain or immobility to Dr. Sobey. This is because both experts, Dr. Simpson and Dr. Nixon, agree that if Ms. Gilberds made no complaints about her shoulder, Dr.

Sobey’s post-operative care complied with the standard of care. In the absence of such complaints, and assuming normal examination results, there would have been no reason to diagnose nerve damage or refer Ms. Gilberds to a plastic surgeon. Both experts also agreed that, if Ms. Gilberds did complain about her shoulder, Dr. Sobey should have taken further steps. [ 137 ] The only evidence that Ms. Gilberds complained to Dr. Sobey comes from Ms. Gilberds herself.

Her evidence in this regard must be considered in light of the fact that she would not have had a reason to try to recall the details of her follow-up care until she discovered she had nerve damage, which was almost seven years after the surgery. The contemporaneous hospital records and notes taken by Dr. Sobey and Dr. Ference do not support Ms. Gilberds’ recollections. The hospital records and Dr. Sobey’s notes indicate the contrary, that there were “no concerns”. Dr.

Ference’s notes, which appear to be quite comprehensive and do in fact refer to a report of shoulder pain in a subsequent visit, do not refer to such a report before the follow-up with Dr. Sobey and do not relate to any referral back from Dr. Sobey. [ 138 ] Plaintiff’s counsel argues that I should accept the Plaintiff’s evidence, rather than that of the records and Dr. Sobey, because it “makes sense”. The Plaintiff did start having shoulder problems soon after the surgery, and she did attribute them to the surgery; this is shown by the January 3 rd visit to Dr.

Ference and the subsequent physiotherapy and massage therapy. Thus, it makes sense that she would have raised these concerns with Dr. Sobey. [ 139 ] Neither the evidence nor this argument satisfies me that Ms. Gilberds’ recollection is accurate. To me it makes sense equally that Ms. Gilberds is recalling her complaints and the discussions about her shoulder that she had with medical professionals in early 2000, after her last visit with Dr. Sobey. What does not make sense is that Dr. Sobey would have ignored such a complaint, if made.

He was clearly aware of the risk of nerve injury, and he was also clearly aware that, in the event of nerve injury, it was important to attempt to have the damaged nerve repaired as soon as possible. [ 140 ] Plaintiff’s counsel suggested to Dr. Sobey that his failing to note a complaint of nerve injury could be a reaction to his own fear that he had made a surgical error. Dr. Sobey responded to this suggestion angrily and passionately. He made it clear that he would regard such conduct as a breach of his most fundamental obligations to his patient and he would never act in this fashion. I found Dr.

Sobey’s response completely credible. Apart from his obvious disgust at the suggestion, the theory of Plaintiff’s counsel makes no sense. Dr. Sobey would have known that, if he had made an error, prompt action could alleviate the situation, while inaction would only make it worse. [ 141 ] The Plaintiff has failed to prove that she complained to Dr. Sobey about her shoulder post-operatively, and thus has failed to prove a breach of the standard of care regarding post-operative treatment. E. Conclusion

[ 142 ] The Plaintiff’s claim is dismissed. The parties may speak to me regarding costs if they are unable to agree. Heard on the 14 th to the 23 rd days of March, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of August, 2011. J.M. Ross J.C.Q.B.A. Appearances: David N. deVere Weir Bowen LLP for the Plaintiff Megan L. McMahon Gowling Lafleur Henderson LLP for the Defendants