Loyie v Hennig, 2013 ABQB 131

Court of Queen ’ s Bench of Alberta Citation: Loyie v Hennig, 2013 ABQB 131 Date: 20130227 Docket: 0503 16456 Registry: Edmonton Between: Andrew Loyie and Her Majesty the Queen In Right of Alberta Plaintiff - and - Kevin R. Hennig, Dr. Kevin R.

Hennig Professional Corporation, Angelo Chiarella and Capital Health operating a hospital known as The Royal Alexandra Hospital Defendants Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ I. Introduction

[ 1 ] Mr. Andrew Loyie, now 75 years old and one-eyed for a number of years, developed a cataract in his remaining, right eye in 2003. He was referred to Dr. Kevin R. Hennig for cataract surgery. Anaesthesia for the operation was provided by a retrobulbar method which in layman ’ s terms involves injection of anaesthetic behind the eyeball by use of a needle. The parties agree that during the application of that anaesthetic, Mr. Loyie ’ s eye globe was perforated. As a result, he lost sight in his remaining eye. [ 2 ] The parties have agreed on quantum of damages. [ 3 ] The issue in this trial was whether Dr.

Hennig met the appropriate standard of care in disclosing to Mr. Loyie the risk of this method of anaesthesia and in properly informing him of alternative methods of anaesthesia and their attendant risks. Mr. Loyie ’ s position is that Dr. Hennig was negligent in failing to properly describe the different options for anaesthesia and their risks, thereby breaching his duty of disclosure. II. Factual Matters A. Evidence in the Plaintiff ’ s Case 1. Mr. Loyie [ 4 ] Mr. Loyie, born [...], 1938, is 75 years of age.

He has a grade five education and worked in various construction and labour jobs over the course of his working life. He last worked in January of 2003. [ 5 ] He lost his left eye in 1976, after which he used a prosthesis. Mr. Loyie testified he developed vision problems in about January 2003. He noticed he had a film on his eye while he was driving. Prior to that, he felt the vision in his right eye was “ pretty good. ” Mr. Loyie was referred to Dr. Hennig, an ophthalmological surgeon and was first seen by him on June 19, 2003. [ 6 ] Mr. Loyie ’ s recollection of his June 19, 2003 consultation with Dr.

Hennig was quite general. He did not remember being seen by a woman in Dr. Hennig ’ s office and being asked by her about his health, the medications he was taking, any allergies he might have and whether there was a family history of cataracts. He remembered Dr. Hennig examining him and talking. Dr. Hennig asked him about his glass eye and shone a bright light in his right eye. He could not remember whether drops were put in his eye or whether he pulled away when the light was shone in his right eye. He could not remember any conversation in which the surgical process was described or its success rate discussed.

According to Mr. Loyie, he was not told he could lose the sight in his remaining eye or face more than one operation. He testified he was not advised there were two methods of freezing the eye and, in particular, was not advised of a method that used drops to freeze the eye. [ 7 ] Mr. Loyie had no recollection of Dr. Hennig using a diagram of the eye to show where the needle would be applied. He did not recall being advised of the risk factor of 1 in 500 or 1,000 from needle anaesthetic and he did not recall Dr. Hennig advising him he preferred the needle anaesthetic method and why.

In his own words, “ I wasn ’ t schooled for any risk. ” Mr. Loyie did remember being told by Dr. Hennig he would be operated on in day surgery and would be awake during the process. He did not recall seeing a nurse after the examination and whether she gave him further information. Mr. Loyie could not recall being given a pamphlet or brochure at the doctor ’ s office that related to the surgery, although he thought his wife mentioned she saw something like that. [ 8 ] Despite his vision problems, Mr. Loyie continued to drive into October 2003, when he had the cataract surgery. [ 9 ] Mr.

Loyie did not remember attending at another doctor ’ s office on September 8 th to have forms for the surgery filled out. He did not recall phoning or seeing Dr. Hennig again in September 2003 and complaining of metal in his eye. He did remember attending with his wife at the Royal Alexandra Hospital on the day of the surgery, October 1, 2003, and signing forms at the desk in his wife ’ s presence. She read the forms to him “ as best she could. ” He recalled he was put on a cot. Mr. Loyie felt the hospital process was a form of “ assembly line ” and said nobody had warned him about that.

He almost left the hospital but then the doctor came. Dr. Chiarella, the anaesthetist, advised him he would be putting a needle in his eye to prevent pain and he was to hold his eye still. According to Mr. Loyie, he had not been told by Dr. Hennig he would be receiving the anaesthetic by needle, but it did not surprise him. He “ had that notion ” a needle would be used. He did not ask Dr. Chiarella any questions and Dr. Chiarella did not speak about alternative methods for

anaesthetic delivery. [ 10 ] Mr. Loyie testified his sister had cataract surgery at a later date. He was pretty sure she did not have a needle for freezing. In his words, “ she had two eyes. ” He wishes he could have had the surgery in a like manner to his sister. [ 11 ] After surgery, a patch was put on his eye. He went home and saw Dr. Hennig the next day. When the patch was removed, he could not see the doctor ’ s face. He was referred to another surgeon immediately. [ 12 ] Mr.

Loyie gave details of the problems he encountered and medical treatment he received post-surgery, including other surgeries to repair his retina. His vision now is “ blurry ” and changes during the day. [ 13 ] As I have outlined above, Mr. Loyie had little if any recollection of details. In cross-examination, he said he did recall being told to keep still by Dr. Hennig. All that he could remember about what Dr. Hennig told him was that he had a cataract and needed surgery. He could not remember being told about the different types of anaesthetic. He said he never heard Dr. Hennig say anything about drops.

He admitted he knew the doctor would have to cut his eye and he knew there would be some sort of anaesthetic. Referring to Dr. Hennig, he said: “ Whatever he did, he did. ” He agreed he followed Dr. Hennig ’ s recommendation. He conceded he asked no questions, he did not tell Dr. Hennig he did not want a needle and he did not request a second opinion. He was happy to have the surgery as Dr. Hennig suggested. He could not recall having a needle anaesthetic for another eye surgery subsequent to this one. 2. Mrs. Linda Loyie [ 14 ] Mrs. Loyie could not remember going to the June 19, 2003 appointment at Dr.

Hennig ’ s office with her husband. When counsel showed her a pamphlet on cataracts distributed by Dr. Hennig ’ s office, she said it looked familiar and it was possible someone from Dr. Hennig ’ s office gave it to her husband. When shown the Data Base 1 and 2 questionnaire attached to a patient information sheet for cataract surgery from Dr. Hennig ’ s office, she agreed she helped her husband fill them out. [ 15 ] Mrs. Loyie testified her husband was happy to have the surgery and not worried about it.

She acknowledged going to the hospital with him on the day of his surgery and helping him fill out forms there. She said the people at the hospital were in a rush to have her husband sign the forms. She felt that no one there had the patience to discuss the surgery with her husband . [ 16 ] Mrs. Loyie said she went with her husband to see Dr. Hennig the day after the surgery when he had his bandages removed. She knew something was wrong right away as there was blood coming down. She testified Dr. Hennig seemed to be angry about something as soon as the bandages came off and he looked in Mr. Loyie ’ s eye.

She indicated Dr. Hennig sent them to another doctor, who examined her husband and told him he had to go back in for emergency surgery. She said there was mention of retina detachment. 3. Expert evidence of Dr. Stuart Smith [ 17 ] Dr. Stuart Smith was called in the Plaintiff ’ s case as an expert in general ophthalmology with a specialty in cataract surgery. His practice is in Vancouver. Dr. Smith outlined the different methods of providing anaesthetic for eye surgery and choices that could be made by surgeons in 2003.

He acknowledged that, in 2003, half of North American surgeons were still using needle anaesthetic rather than topical anaesthetic. He said there are risks and benefits associated with both retrobulbar and peribulbar anaesthetic. He reported perforation of the eye globe is a known complication with retrobulbar anaesthetic, occurring between 1:500 to 1:1,000 cataract surgeries. [ 18 ] Dr. Smith had an opportunity to examine Mr. Loyie on October 24, 2007 and concluded as a result of that examination Mr.

Loyie would be an appropriate candidate for topical anaesthetic even though he had some difficult in keeping his eye still and was a bit sensitive to the light. He acknowledged Mr. Loyie in 2007, after having had four eye surgeries, was not the same patient he would have been in 2003. [ 19 ] Dr. Smith testified the factors an ophthalmologist in 2003 would consider in recommending topical anaesthetic would

include: patient co-operation, head tremors, eye movements and, occasionally, sensitivity to light. [ 20 ] Dr. Smith did not take issue with Dr. Hennig having a preference for retrobulbar anaesthetic or for recommending that form of anaesthetic to Mr. Loyie. [ 21 ] The real essence of Dr. Smith ’ s opinion is found at page 2 of his expert report, in which he stated: One cannot criticize Dr. Hennig for his preference of the retrobulbar method. However, in my opinion, many cataract surgeons, including myself, would have performed surgery on Mr. Loyie using topical anaesthesia.

The decision as to which method of anaesthesia to use should be arrived at jointly between patient and surgeon. The patient must be given reasonable information about the risks and benefits of the proposed surgery, as well as the risks and benefits of the reasonable methods of anaesthesia that might be used for the surgery. In my opinion, the fact that a patient is having surgery on his one useful eye increases the importance of a proper discussion of risks and benefits of the different methods available. . . . In my opinion, Dr. Hennig ought to have explained to Mr.

Loyie the risks and benefits of the cataract surgery that he was proposing, including the risks associated with the particular anaesthetic method that he was proposing to use, and importantly, the alternative methods of anaesthesia that were available for the procedure, including topical anaesthetic and peribulbar injection. [ 22 ] Dr. Smith testified the discussion with a patient like Mr. Loyie concerning anaesthetic delivery options should have included retrobulbar and peribulbar injections, topical anaesthetic, general anaesthetic and use of sub-tenon injections.

In cross-examination, he agreed few surgeons would have discussed the nuances between the two needle techniques with the patient. He agreed that by 2003 there was a trend away from general anaesthetic as needle anaesthetic was felt to be safer and it was unlikely a 65-year old individual at that time would have cataract surgery under general anaesthetic. [ 23 ] In cross-examination, Dr. Smith confirmed that in 2003 he was an advocate for topical anaesthetic and already had done a substantial number of surgeries using that method.

He agreed use of retrobulbar anaesthetic was an appropriate choice of anaesthetic delivery for a surgeon to make at that time and it was less likely a patient with photophobia would move after administration of the anaesthetic in that manner. However, he did not agree that a patient who was uncooperative, photophobic and was squeezing his eyes during examination would pose an increased risk for topical anaesthetic for a surgeon sufficiently experienced with its use. [ 24 ] Dr.

Smith was asked whether it is a duty of a surgeon to recommend a method of anaesthesia and replied it is the duty of the surgeon to explain the different methods and their relative risks and benefits and then to allow the patient to make the decision. He conceded it is reasonable for a surgeon to mention a preference and the reasons for that preference. He said he invites questions from his patients and agreed if a patient has concerns about the proposed surgery or method of anaesthesia, he would expect the patient to raise the concerns with him. B. Evidence for the Defendant 1. Dr. Kevin R.

Hennig [ 25 ] The Defendant Dr. Kevin R. Hennig was an experienced ophthalmologist and surgeon in 2003. The profession was starting to move towards the use of topical anaesthetic by then. Despite that trend, Dr. Hennig was still using the retrobulbar method of anaesthesia. Indeed, he preferred that method in a case such as this as he was of the view it minimized eye movement. [ 26 ] Dr. Hennig had a clear recollection of Mr. Loyie as a patient given Mr. Loyie had only one eye, he refused to tell Dr. Hennig

what had happened to his other eye even though he was asked about it a number of times in different ways, and due to his movements during the examination and because of the subsequent complications. Dr. Hennig recalled particulars of the June 19, 2003 first assessment and information session. His chart for that date is extremely detailed with respect to his examination, his findings and, importantly, details of his discussions with Mr. Loyie. Dr. Hennig testified Mr. Loyie had problems keeping still while his eye was being examined and he was concerned that might occur during the surgical procedure.

In the chart, he noted “ unable to stay still for exam. ” [ 27 ] He described Mr. Loyie as being “ not the easiest gentleman to get answers from ” and as being distant. He said while Mr. Loyie was not loquacious, the answers he did give were appropriate and he appeared to understand what Dr. Hennig was saying. Dr. Hennig testified that, typically, he would ask a cataract patient if he or she was still working and driving. He said his impression was that Mr. Loyie was not. He described the cataract he observed in Mr. Loyie ’ s right eye as very significant. He said Mr.

Loyie squeezed his eye quite firmly and pulled his head back when Dr. Hennig examined his eye using a light. A number of times, Dr. Hennig had to reposition him and advise him to stay still. In testimony, he said he had to “ wrestle his eye open ” and described it as a struggle. He also recalled having to give the patient drops on more than one occasion. After the second set of drops, it was still a struggle to have Mr. Loyie keep his eye open. [ 28 ] In Dr. Hennig ’ s estimation, Mr. Loyie had a severe enough cataract that he would benefit from surgery to improve his vision.

He said he discussed this with the patient. Dr. Hennig testified he consciously considered whether to do the surgery himself, given Mr. Loyie ’ s reluctance to speak to him about what had occurred to his other eye. Ultimately, he decided he could undertake the surgery. His recollection was he told Mr. Loyie this type of surgery was successful 95 percent of the time, but it was not risk free. [ 29 ] Dr. Hennig testified he advised Mr. Loyie that, in a worst-case scenario, he could suffer from bleeding, infection, retinal detachment, blindness or lose his eye. These were uncommon risks that could occur.

He could also experience double vision or could require a second surgery. He told Mr. Loyie that with this type of surgery, usually there was no need to put the patient to sleep and a local anaesthetic could be used. He said he advised him there were two types of local anaesthetic available: retrobulbar freezing that uses a needle behind the eye; and topical anaesthetic, which used freezing drops on the surface of the eye. He testified he informed Mr.

Loyie that with retrobulbar anaesthetic there is a 1:500 to 1:1,000 risk of the needle hitting the eye or a muscle around it with the possibility of loss of vision or double vision. He said he told him that many cataract surgeries are done using topical anaesthetic. [ 30 ] According to Dr. Hennig, in 2003, he would generally tell patients he did most cataract surgeries using retrobulbar anaesthetic as it provides the best pain control and prevents the eye from moving and it was his preferred method. He would explain why. With Mr. Loyie, he emphasized his concern Mr.

Loyie had been squeezing his eye, was light sensitive and had been moving throughout the examination. Dr. Hennig testified if Mr. Loyie had been a good candidate for topical, he would have recommended that method. He told Mr. Loyie he did not think he was a good candidate for topical anaesthetic as there was an increased risk with movement. In his notes, he underlined the word “ retrobulbar ” three times because he felt so strongly this was the best option for Mr. Loyie. [ 31 ] Dr. Hennig said his practice in terms of note-taking was to document disclosure and informational advice on his chart.

About two years before he saw Mr. Loyie, as use of topical anaesthetic increased, he began to add a note regarding the discussions he had with patients concerning anaesthetic options. [ 32 ] Dr. Hennig testified that although most patients do ask questions in a preliminary examination, Mr. Loyie did not do so through the entire discussion, as noted on the chart. There is no indication on his chart that Mr. Loyie questioned any of the conversation. [ 33 ] Dr. Hennig said he did not consider using a resident as he was very aware of the monocular condition of this patient. He emphasized to Mr.

Loyie the risk of losing his remaining eye on more than one occasion. Dr. Hennig then passed Mr. Loyie on to his assistant to perform other calculations. He said he spoke to Mr. Loyie a final time and asked if he had any concerns. [ 34 ] Dr. Hennig said he did not seriously consider using general anaesthetic in Mr. Loyie ’ s case as he felt it was too great a risk. He indicated that, typically, he did not distinguish between retrobulbar and peribulbar anaesthetic in his discussions with patients.

He said the sub-tenon method would still leave the eye too mobile and there was not enough of a difference between it and the other methods discussed. Dr. Hennig testified he continued to worry about the movement he experienced with Mr. Loyie during examination, including the eye squeezing, and that was significant in him preferring to use a retrobulbar anaesthetic on this patient. He clarified that movement was a surgical risk, but related to the anaesthetic.

[ 35 ] Dr. Hennig testified that if Mr. Loyie had said he did not want a needle or asked for a second opinion, he would have referred Mr. Loyie to another surgeon. He said that did not occur. [ 36 ] Dr. Hennig testified he next saw Mr. Loyie on September 8, 2003. Mr. Loyie was complaining of something in his eye. He noticed what might be a scar but no foreign body. [ 37 ] He indicated that in terms of the surgery itself on October 1, 2003, there were no complications. He saw Mr. Loyie the next day in his office and noticed a small tear in his eye. Dr.

Hennig had never seen a perforation from an anaesthetic and was not sure if the tear was related to that or not. He referred Mr. Loyie to a retina specialist and in his referral note mentioned retrobulbar anaesthetic had been used as Mr. Loyie was a poor candidate for topical. He next saw Mr. Loyie in July 2004. [ 38 ] In cross-examination, Dr. Hennig confirmed cataract surgery constituted less than 50 percent of his practice by June 2003. He admitted that although many ophthalmologists were using mostly topical anaesthetic by that time, he did most of his surgeries using retrobulbar anaesthetic.

By October 2003, he had used topical anaesthetic about 100 times. Subsequent to that time, he did more surgeries with topical anaesthetic as he saw it as the “ way of the future. ” He confirmed it was his practice to choose a method of anaesthesia well before the date of the operation. In this case, he felt Mr. Loyie was “ far from a good candidate for topical anaesthesia. ” He described Mr. Loyie ’ s squeezing motions during examination as being “ dramatic. ” He reiterated he had a clear memory of Mr.

Loyie given he had only one eye and was a difficult patient, specifically in regard to providing information on how he had lost his eye. [ 39 ] In cross-examination, Dr. Hennig confirmed he told Mr. Loyie the risks associated with use of a needle anaesthetic. He maintained he told Mr. Loyie he was a poor candidate for topical anaesthetic and his preference was for retrobulbar anaesthetic, although at examination for discovery he stated he did not remember mentioning to Mr. Loyie that retrobulbar was his preferred method of anaesthesia. It was suggested to him he did not give Mr.

Loyie an opportunity to choose other options of anaesthetic delivery. He stated that was not the case. Rather, Mr. Loyie was told of the various methods of anaesthesia and it was Dr. Hennig ’ s suggestion the procedure be done with a retrobulbar anaesthetic. [ 40 ] Dr. Hennig confirmed he did not offer general anaesthetic to Mr. Loyie. He agreed he did not tell him another surgeon might do the surgery using topical anaesthetic. 2. Dr. Harold Climenhaga [ 41 ] Dr. Harold Climenhaga is an Edmonton ophthalmologist, whose practice is 90 percent cataract surgery.

He was qualified to give opinion evidence on the standard of care regarding assessment, diagnosis and management of cataract surgery by an ophthalmologist in Alberta and elsewhere in Canada in 2003. [ 42 ] In his report, Dr. Climenhaga indicated the standard anaesthetic choices in 2003 included topical anaesthetic, topical anaesthetic with conscious sedation, posterior sub-tenon anaesthetic, retrobulbar or peribulbar anaesthetic, general anaesthetic or referral to another more experienced surgeon. [ 43 ] Dr. Climenhaga testified that by 2003 he was doing virtually all cataract surgeries using topical anaesthetic.

He said that two- thirds of the ophthalmology surgeons in Edmonton were still using retrobulbar and peribulbar methods for anaesthesia at the time. He described topical anaesthetic as having a low risk of perforation but also carrying the highest risk regarding patient movement and, therefore, the highest surgical risk. He indicated he is of the view conscious sedation should be available if topical anaesthetic is used. He noted topical anaesthetic does not offer akinesia (prevention of eye movement). [ 44 ] Dr.

Climenhaga indicated in practice there is very little difference between retrobulbar and peribulbar anaesthetic and he does not distinguish between the two of them with patients. He said with the sub-tenon technique there is still eye movement. He stated in his report posterior sub-tenon anaesthetic has no safety benefit during standard cataract surgery where eye movement is a concern.

[ 45 ] Dr. Climenhaga testified that when he was doing retrobulbar/peribulbars, his default technique was general anaesthetic. When he made the transition to use of topical anaesthetic, there were still some patients who were not suited to that technique. His default remained general anaesthetic. However, over the past four or five years, he has been doing more retrobulbars because of the risks of general anaesthetic. [ 46 ] Dr. Climenhaga indicated there were no positive reasons to have opted for use of a general in this case. [ 47 ] Dr. Climenhaga commented that simply because Dr. Hennig did not think Mr.

Loyie was a good candidate for topical anaesthetic was not a reason for him to have referred Mr. Loyie to another ophthalmologist. If he referred him because he did not want to use topical anaesthetic given Mr. Loyie was monocular and he did not want to risk being sued, Dr. Climenhaga ’ s response would be: “ ...well, thanks, neither do I. ” Dr. Climenhaga noted Dr. Hennig knew how to use topical anaesthetic and had some experience with it. He commented that in the circumstances if Dr. Hennig thought Mr.

Loyie was not a good candidate for that method of anaesthesia, “ why would I think he ’ s a good candidate? ” [ 48 ] Dr. Climenhaga agreed Mr. Loyie, a monocular patient, would not have been a very good candidate for topical anaesthetic if, as Dr. Hennig described, he squeezed his eye in response to light, was light sensitive and was unable to stay still during the examination. However, Dr. Climenhaga said he probably would have used topical anaesthetic if Mr. Loyie had been referred to him by an optometrist for cataract surgery as he believed he could have reassured the patient sufficiently.

His fall back position would have been a general anaesthetic. If Mr. Loyie had been referred by another surgeon who felt he was a poor candidate for topical anaesthetic, the surgeon was uncomfortable using topical on him and the surgeon and patient did not get along, Dr. Climenhaga would have given weight to the doctor ’ s opinion and used a different form of anaesthetic. He noted it would be a consideration for him in deciding whether to refer a patient to another surgeon whether the patient was still driving. [ 49 ] Dr. Climenhaga said recommending retrobulbar anaesthetic for Mr.

Loyie was within the standard of care of an ophthalmologist in 2003 in Edmonton. [ 50 ] Dr. Climenhaga testified that in obtaining informed consent in 2003, he would describe what a cataract is, what the treatment for it is and indicate that 99 percent of people do well with the surgery but there is a one percent risk of loss of vision of some sort and a 1 :1,000 risk of blindness or loss of the eye. He would say he generally did the surgery under topical anaesthetic, explain what that meant, and indicate it would be done as day surgery.

He would indicate sedation could be provided when the anaesthetic was given and then ask if the patient had any questions. He testified he did not outline the various options for anaesthesia to the patient. However, he would discuss the risks of the surgery and answer any questions the patient had. He did not routinely mention the patient could get a second opinion, unless he had told the patient something the patient did not want to hear. [ 51 ] Dr. Climenhaga was asked whether a patient should be given all anaesthetic options and then be allowed to choose one.

His answer was “ no, ” the anaesthetic was tied to a surgical package and “ [i]t ’ s not a candy shop. He said he feels it is the surgeon ’ s job to recommend what the surgeon feels is the best option for the patient. The only time it would be appropriate to give a patient anaesthetic options would be if money was an issue or if two options were equal. Otherwise, a surgeon would recommend the best option. It would only be in limited circumstances a surgeon would discuss the methods used by other surgeons. [ 52 ] In his report, Dr. Climenhaga stated Dr. Hennig ’ s discussion with Mr.

Loyie was very thorough and exceeded usual standards. In direct-examination, he was asked to assume Dr. Hennig advised Mr. Loyie as Dr. Hennig testified he did. Based on that assumption. Dr. Climenhaga gave his opinion Dr. Hennig discussed the reasonably appropriate anaesthetic options for Mr. Loyie. [ 53 ] In cross-examination, Dr. Climenhaga stated he was surprised Dr. Hennig had such a lengthy discussion with Mr. Loyie about an option for which he did not feel Mr. Loyie was a good candidate. He admitted he had done thousands of operations with topical anaesthetic by 2003and felt it was safer for patients.

He stated in this case he would have applied a topical anaesthetic plus some further sedation. With respect to providing more information to this patient, he stated there would be no point discussing a topical anaesthetic in more detail if the patient was not an appropriate candidate. He distinguished anaesthetic and surgical risks. In this case, the fact the patient was monocular did not mean he faced greater risks. The risks were the same. However, the consequences could be greater. 3. Dr. Ernest Hodges

[ 54 ] Dr. Ernest Hodges is an Edmonton ophthalmologist who was qualified to give expert evidence on the standard of care in Alberta in 2003 as it pertained to the assessment, diagnosis and management of cataracts. He testified in 2003 he used retrobulbar or peribulbar anaesthetic almost uniformly. He guessed there were fewer than 50 percent of ophthalmologists in Edmonton at that time using topical anaesthetic on a regular basis. [ 55 ] Dr. Hodges said that he did not distinguish between retrobulbar and peribulbar anaesthetic methods in speaking with his patients.

He agreed these methods were safer for an elderly patient than using general anaesthetic. He also agreed the sub-tenon method was not as good as retrobulbar in preventing eye movement and was not as efficient. He considered it reasonable for an ophthalmologist in Alberta in 2003 to have a preference for retrobulbar anaesthetic and was of the view it was reasonable for Dr. Hennig to conclude use of retrobulbar anaesthetic was best for Mr. Loyie given it was 2003 and, at the time, Dr. Hennig did not have wide experience with topical anaesthetic.

He identified the choice as being one based on safety; that is, a surgeon would not want to risk eye movement, squirming or, in this case, light sensitivity. [ 56 ] Dr. Hodges testified that in his practice he does not tend to divide surgical risks from anaesthetic risks in discussions with patients. He was of the view the risk of perforation of the eye due to use of retrobulbar anaesthetic is not nearly as great as 1:500. Assuming Dr. Hennig advised the patient of the risks of surgery as indicated by his notes, Dr. Hodges was of the view that constituted a comprehensive review. [ 57 ] He agreed Mr.

Loyie was a poor candidate for topical anaesthetic. He could not see any reason for Dr. Hennig to have referred Mr. Loyie to another surgeon. He said he would not have done so unless the patient asked for a referral. He confirmed that in the circumstances of this case he would not have raised the issue of a general anaesthetic as “ why bring up something that ’ s a greater risk? ” [ 58 ] Dr. Hodges stated in his report that ophthalmological surgeons treat all patients as if they are monocular.

He expanded on that in examination-in-chief, stating such patients are told there are no guarantees of a risk-free surgery. [ 59 ] Dr. Hodges was asked to assume Dr. Hennig advised Mr. Loyie of the alternatives for anaesthesia and risks and benefits of those alternatives as indicated in Dr. Hennig ’ s notes and evidence. Based on that assumption, Dr. Hodges gave his opinion that was reasonable disclosure to the patient. [ 60 ] Dr. Hodges indicated doctors have to use their judgment in providing their patient with the most pertinent information, without confusing them.

He confirmed that in his practice, he does not discuss all four or five anaesthetic options with a patient as that can make it difficult for the patient to make a real and logical choice. He tells them only about the most realistic possibilities. In this situation, he would not have discussed sub-tenon or general anaesthetic. [ 61 ] In cross-examination, Dr.

Hodges indicated that once he decided to move to topical anaesthetic, he went “ all the way. ” He said that if a patient tended to squeeze his eyes and he was considering retrobulbar anaesthetic, he would also want more sedation and would speak to an anaesthesiologist about that. [ 62 ] Dr. Hodges was asked to confirm it was his opinion there is no obligation on a surgeon to discuss all reasonable alternatives of anaesthetic method. He responded by saying that was a misrepresentation of his evidence. The alternatives in this case would have been topical or retrobulbar/peribulbar. He was asked to assume Dr.

Hennig told Mr. Loyie that because of his examination, Mr. Loyie was a poor candidate for topical anaesthetic and he proposed to use retrobulbar anaesthetic. Dr. Hodges responded that this would have been the majority of discussion needed. He was asked whether it was his opinion the standard of care in discussing alternatives was met by a surgeon first deciding the best options and then explaining those to the patient. He responded that a patient should be aware of information but the options discussed must be viable.

The patient should not be frightened or confused about such information to the point where the patient cannot make a decision on other crucial issues. [ 63 ] Dr. Hodges was asked whether, in 2003, he would discuss topical anaesthetic with a monocular patient who had difficulty staying still for his examination, significant photophobia and whom he felt was a poor candidate for topical anaesthetic. He said he would mention it but not continue on at great length about it.

4. Rosella Cartwright [64] In June 2003, Ms. Cartwright was an ophthalmic assistant working in Dr. Hennig’s office. Her job was to pre-screen patients,obtain a medical history and perform some testing. She recalled Mr. Loyie as being unwilling to tell her how he had lost his eye. Shepassed the information on to Dr. Hennig that Mr. Loyie was sensitive about talking about his loss. [65] After Dr. Hennig examined Mr. Loyie, he passed his notes to her and told her he was choosing retrobulbar anaesthetic. [66] She did not have a specific memory of Mr.

Loyie other than that he had only one eye and could not keep the other one still.She said he did not ask her any questions. [67] Her practice, after the doctor’s examination, is to sit down with the patient, go over certain forms, discuss the date of thesurgery and provide a package of materials, including forms to be filled out and a pamphlet or brochure describing the risks and benefitsof the surgery. She advises the patient he and his family doctor must fill out certain of the forms and they must be returned to her. Shewrites her name and phone number on the forms.

She recalled that at the end of her interview with Mr. Loyie, she asked him again if hadany questions, but he did not. [68] She recalled that Mr. Loyie came in to the office again on September 8, 2003. The next time she saw him was the day afterhis surgery, when he still had a patch on his eye. [69] In cross-examination, she confirmed that in 2003 Dr. Hennig was using both retrobulbar and topical methods of anaestheticand, as a result, he would always tell her which method would be used for which patient.

She confirmed it was not unusual to have “noresident” specified if a patient had limited or no sight in the other eye. III. Issue [70] Both parties agree the issue here is one of informed consent. IV. The Law [71] The doctor-patient relationship requires the doctor to disclose to a patient the nature of the proposed operation, its gravity,any material risks and any special or unusual risks attendant on performance of the operation. The doctor must also answer any specificquestions posed by the patient: Reibl v Hughes, (SCC), [1980] 2 SCR 880 at para 4; Hopp v Lepp, (SCC), [1980] 2 SCR 192 at 210.

The requirement to identify risks that are material, special or unusual becomes more pronounced wherematerialization of the risk carries with it serious consequences (Hopp at 209; Reibl at 884-885).

Ritter J (as he then was) suggested inRhine v Millan, 2000 ABQB 212 at paras 21-22 that in determining whether proper disclosure has been made, the court should adopt apatient-centred approach to defining the material risks by considering what the patient would have found relevant, in addition to what themedical profession would have deemed material: Reibl; Ciarlariello v Schacter, (SCC), [1993] 2 SCR 119; and Seneyv Crooks (1998), 1998 ABCA 316 , 223 AR 145 (CA). [72] As indicated by Macklin J in Patterson v Hryciuk, 2004 ABQB 934 at para 48: A doctor's obligation to obtain informed consent necessarily requires some discussion with the patient of the various options availableand their comparative risks (Hollis v.

Dow Corning Corp., (SCC), [1995] 4 S.C.R. 634 at 655-656). While the doctor isat liberty to advise the patient as to the procedure he or she believes superior or more appropriate, the doctor is still obliged to advise ofother acceptable and appropriate procedures (Seney v. Crooks (1998), 1998 ABCA 316 , 166 D.L.R. (4th) 337 at 353-354(Alta.C.A.)).

[73] In Cory v Bass, 2011 ABQB 360 at para 107, Tilleman J concluded recent case law supports the view patients must beinformed about reasonable alternatives, particularly those that are more conservative and involve fewer risks than the proposedtreatment.

The Alberta Court of Appeal in Seney indicated at para 60 that a patient should be advised of a known treatment others in thesame specialty consider superior even if the doctor does not agree with it. [74] The court may give significant weight to a doctor’s standard practice as evidence of the warning given to the patientregarding risks associated with a medical treatment or procedure: Tetterington v Wiens (1995), 1995 ABCA 102 , 165 AR 6(CA, leave to appeal to SCC ref’d [1005] SCCA No 154. [75] In terms of causation, the basic test remains the “but for” test: Resurfice Corp v Hanke, 2007 SCC 7 , [2007] 1 SCR333 at paras 21-25; Clements v Clements, 2012 SCC 32 at para 46, 346 DLR (4th) 577.

Where the issue is informed consent, a modifiedobjective test applies. The question is what the average prudent person in the patient’s particular position would have agreed to or notagreed to if proper disclosure had been made: Reibl at para 25. In Zaiffdeen v Chua, 2005 ABCA 290 at para 35, the court stated it issufficient for the plaintiff to establish he would not have had the treatment if properly informed, and the alternative treatment or notreatment would not have produced the same or more serious injury. V. Position of the Parties A. Mr. Loyie [76] Mr.

Loyie concedes use of retrobulbar anaesthetic was reasonable at the time of his operation even though someophthalmological surgeons in Edmonton had completed the transition to total use of topical anaesthetic. He agrees that in 2003 mostpatients would not have been offered a general anaesthetic for the operation. [77] Mr. Loyie claims Dr. Hennig was well aware of the risk of perforation of the eye globe associated with use of retrobulbaranaesthetic and knew this risk could be eliminated by use of topical anaesthetic. He says Dr.

Hennig’s recollection of advising him he didnot need to be asleep for the operation, he was a poor candidate for topical anaesthesic and a needle would be used to administer theanaesthetic clearly indicates Dr. Hennig had taken the option of topical anaesthetic off the table. Mr. Loyie says it is apparent from Dr.Hennig’s own evidence he would not have administered a topical anaesthetic even though all three of the independent experts whotestified would have done so. [78] Mr. Loyie asserts Dr.

Hennig had a narrow comfort zone for use of topical anaesthetic, he knew other ophthalmologicalsurgeons in the city were using it and, although he preferred use of retrobulbar anaesthetic, he knew the community was moving towardstopical. Mr. Loyie contends this was information a reasonable 65 year-old monocular patient who wanted to return to work in the futurewould have wanted to know before having surgery on his only eye. [79] Mr. Loyie urges the Court to reject the view of Dr. Hennig’s experts that patients should not be given too much information.He submits this is contrary to the law. [80] Mr.

Loyie criticizes the tenor of the defence expert evidence. He contrasts their evidence to that of Dr. Smith, who did notcriticize Dr. Hennig’s use of retrobulbar anaesthetic but rather said the patient should have been told there were many surgeons usingtopical anaesthetic at the time. He notes even Dr. Climenhaga would have discussed use of general anaesthetic as his fall back position.However, he says Dr. Climenhaga evidence must be treated carefully as his statement he would have refused the referral is simply notcredible. [81] Mr.

Loyie submits the issue here is not whether he was a good candidate for topical anaesthetic. He acknowledges he wasnot. The issue is whether another surgeon would have administered topical anaesthetic. [82] Mr. Loyie contends Dr. Hodges missed the point of this claim. He argues Dr. Hodges’ view it is up to the surgeon to decidewhat method is best for his patient is outdated, paternalistic and not in accordance with the law. He says Dr. Hodges’ suggestion that asurgeon would be frowned on for referring a difficult patient is disturbing. As a result, the Court should prefer Dr. Smith’s evidence.

[ 83 ] Mr. Loyie questions why Dr. Hennig felt it necessary to write to another surgeon the day after the surgery stating Mr. Loyie had been a poor candidate for topical anaesthetic. [ 84 ] Mr. Loyie maintains a reasonable patient of 65 years of age with one eye, if properly informed of the alternatives for anaesthetic and of referral, would have opted to retain another surgeon. In that case, there would be no loss. He claims that had he been referred to an anaesthesiologist or to Dr. Climenhaga, he would have had alternatives regarding the anaesthetic used.

He maintains all he need establish is that he would not have had the surgery on the day on which he did, citing Martin v Findlay , 2007 ABQB 260 at paras 103-120 , appeal allowed without deciding on this issue 2008 ABCA 161 , 432 AR 165 . [ 85 ] As to the defence contention he was contributorily negligent, Mr. Loyie maintains there is no evidence his refusal to disclose how he lost his other eye contributed to the loss which occurred as a result of use of the retrobulbar anaesthetic. B. Dr. Hennig [ 86 ] Dr. Hennig agrees this case is about informed consent. He argues Mr.

Loyie was informed of the benefits and risks of the surgery and particularly of retrobulbar anaesthetic. He points to the test in Reibl and Hopp as being what a reasonable patient would find relevant and what a reasonable surgeon would deem material. He notes all of the expert witnesses agreed they would not have distinguished between retrobulbar and peribulbar anaesthetic. [ 87 ] Dr. Hennig agrees patients should be informed of reasonable alternatives which pose less risk. He submits the defence experts agreed use of general anaesthetic was not appropriate. Even Dr.

Smith conceded retrobulbar anaesthetic was safer than use of a general. Dr. Hennig argues Mr. Loyie did not meet the primary indicators for general anaesthesia. He says a true alternative to retrobulbar anaesthetic would have to offer a therapeutic benefit. Dr. Smith and Dr. Hodges agreed the sub-tenon technique would not have done so. The only other alternative was topical anaesthetic. Dr. Hennig contends that while topical anaesthetic might have had a lower risk, the overall surgical risk using topical was higher. As a result, topical anaesthetic was not a more conservative choice here.

He says that, in any event, he did not eliminate topical as an option. He advised Mr. Loyie many doctors use topical but he did not feel Mr. Loyie was a good candidate for it. [ 88 ] Dr. Hennig maintains that to require him to have disclosed and discussed all five methods of anaesthesia would be to overextend the duty of care in that regard. [ 89 ] He asserts Mr. Loyie did stand out as a patient. He had good reason to remember Mr. Loyie specifically. He maintains his recollection is reasonable and consistent with his chart and his assistant ’ s evidence. He says Mr.

Loyie ’ s refusal to discuss how he lost his other eye contributed to his impression Mr. Loyie might not be cooperative during surgery. Dr. Hennig submits he recommended one of the only two methods of anaesthesia he felt would be appropriate but discussed both and explained the reasons for his recommendation. [ 90 ] Dr. Hennig suggests the Court should bear in mind Dr. Smith ’ s experience is in a completely different community where there was a shortage of anaesthetists at the time. [ 91 ] He contends there was no reason for him to refer Mr. Loyie to another doctor.

He was qualified to undertake the surgery, he had experience using retrobulbar and topical anaesthetic, he felt Mr. Loyie was not a good candidate for topical and there was no indication Mr. Loyie was uncomfortable with him proceeding. [ 92 ] Dr. Hennig argues that even if the Court finds there was insufficient disclosure, it can make the inference Mr. Loyie would still have agreed to have Dr. Hennig proceed as he consented to a second surgery which involved use of retrobulbar anaesthetic. Also, Mr. Loyie was not afraid of the surgical risks. He was prepared to follow his surgeons recommendation.

VI. Analysis [ 93 ] Mr. Loyie does not suggest it was negligent for Dr. Hennig to recommend use of retrobulbar anaesthetic in this case. He does not claim Dr. Hennig was negligent in performing the cataract surgery. The narrow issue here is whether Dr. Hennig provided sufficient disclosure to Mr. Loyie of the reasonable alternative methods for anaesthesia and of their relative risks and benefits given his circumstances. [ 94 ] I accept Dr. Hennig ’ s evidence relating to his discussions with Mr. Loyie. Dr. Hennig had a clear recollection of Mr. Loyie and of what he said to him.

He offered a reasonable explanation as to why Mr. Loyie stood out in his mind. His chart and the evidence of Ms. Cartwright are consistent with his evidence. [ 95 ] Mr. Loyie, on the other hand, had only a vague recollection of his initial meeting with Dr. Hennig. In fact, he had no memory at all of having been seen by Ms. Cartwright before or after his examination by Dr. Hennig or of a woman taking his history, conducting tests and later giving him an information package relating to the surgery. I accept Ms. Cartwright ’ s evidence she took Mr. Loyie ’ s history and conducted certain tests on him.

The history and results of those tests are noted on the chart for Mr. Loyie. [ 96 ] Ms. Cartwright testified it was her usual practice to give cataract patients an information package with a pamphlet describing the surgery and containing forms to be filled out by the patient ’ s medical advisor. I accept she did so in this case given Mrs. Loyie ’ s evidence she recognized the pamphlet Ms. Cartwright said she generally gave out and since completed copies of the forms in question were produced. The health history and medication forms show the information was provided by Mrs. Loyie and reviewed by Dr. Hennig. Mr.

Loyie did not deny having received the pamphlet. He simply said that he could not remember whether he had. [ 97 ] Mr. Loyie did not recall whether drops were put in his eye or whether he pulled away when the light was shone in his right eye. In cross-examination, however, he acknowledged he was told by Dr. Hennig to stay still. Ms. Cartwright confirmed Mr. Loyie would not say how he lost his left eye and he could not keep his eye still. She said he did not ask her any questions. This supports Dr. Hennig ’ s evidence to like effect. [ 98 ] Mr. Loyie testified all he could remember being told by Dr.

Hennig was that he had a cataract and needed surgery. He could not remember any conversation in which the surgical process was described or its success rate discussed. I am satisfied Dr. Hennig told Mr. Loyie he had a cataract in his right eye and that was the reason he was not seeing well. I am satisfied he informed Mr. Loyie what a cataract is and explained how he could benefit from surgery. I am satisfied he described what was involved in the surgery, said 95 percent of patients do well after such surgery but also advised him the surgery is not risk free. The information package I have found Mr.

Loyie was given included a document entitled “ Information for Patients, ” which provided this same information. [ 99 ] Despite what appears to be a vague memory of the visit in other respects, Mr. Loyie testified he was not “ schooled for any risks. ” I accept Dr. Hennig ’ s evidence he advised Mr. Loyie of the possible risks of cataract surgery, including bleeding, infection, retinal detachment, double vision, the need for a second surgery, blindness or loss of his eye. Dr. Hennig ’ s chart from Mr.

Loyie ’ s first visit contains the notations: “ loss of eye/ rd [retinal detachment] / infection/blindness/bleeding, ” “ aphakia/ reop [reoperation], ” and “ pupil & ptosis/diplopia. ” These notes are supportive of the evidence he gave concerning his advice to Mr. Loyie of the risks involved in the surgery. The pamphlet Mr. Loyie was given also outlines the possible complications of cataract surgery. [ 100 ] Mr. Loyie testified Dr. Hennig did not mention anything about how pain would be managed during the surgery. I accept Dr. Hennig ’ s evidence he told Mr.

Loyie that usually there was no need to put the patient to sleep for this type of surgery and a local anaesthetic could be used. Mr. Loyie did recall being told by Dr. Hennig he would be operated on in day surgery and would be awake during the process. [ 101 ] Mr. Loyie initially testified he was not advised by Dr. Hennig there were two methods of freezing the eye, including a method that used drops. He said he could not remember Dr. Hennig telling him about the needle. I accept Dr. Hennig ’ s evidence he advised Mr.

Loyie there were two types of local anaesthetic available: retrobulbar, involving use of a needle; and topical anaesthetic (freezing drops). I find he informed Mr. Loyie of the possible risks associated with retrobulbar anaesthetic and told him many cataract surgeries are done using topical anaesthetic. He advised Mr. Loyie he was concerned because he had been squeezing his eye and moving during the examination and was light sensitive. He said he did not feel Mr. Loyie was a good candidate for topical anaesthetic since there was an increased risk with movement.

He told him he recommended the needle method and showed Mr. Loyie where the needle would go to apply the retrobulbar anaesthetic.

[ 102 ] In cross-examination, Mr. Loyie agreed Dr. Hennig might have told him the needle anaesthetic prevents the eye from moving, but he could not remember that. Mr. Loyie testified that when the anaesthetist at the hospital on the day of the surgery told him he would be putting a needle in his eye to freeze it, he was not surprised as he “ had that notion ” a needle would be used. This too supports my finding Dr. Hennig discussed methods of anaesthesia with Mr. Loyie. [ 103 ] Dr. Hennig ’ s chart for Mr.

Loyie contains the notation: “ anaesthetic (retrobulbar vs. topical, ” with retrobulbar underlined three times. I accept his testimony this was his record of having discussed both options with Mr. Loyie and that he underlined the word “ retrobulbar ” because he felt so strongly it was the best option for Mr. Loyie. His notes state: “ unable to stay still for exam, ” supporting his evidence that was the main factor influencing his recommendation of retrobulbar anaesthetic. The pamphlet Mr. Loyie was given states: Talk to your surgeon about the variety of anesthetic choices.

There are a number of techniques which include local or topical (eye drops), nerve blocks (using a needle to inject a local anesthesia around the eye), and general anesthesia. [ 104 ] In cross-examination, Mr. Loyie said that he never heard Dr. Hennig say anything about drops. He admitted he knew the doctor would have to cut his eye and he knew there would be some sort of anaesthetic. Referring to Dr. Hennig, he said: “ Whatever he did, he did. ” He agreed he followed Dr. Hennig ’ s recommendation. He conceded he asked no questions, he did not tell Dr.

Hennig he did not want a needle and he did not request a second opinion. He was happy to have the surgery as Dr. Hennig suggested. Mr. Loyie admitted he did not ask the anaesthetist at the hospital any questions when told his eye would be frozen using a needle. He could not recall having a needle anaesthetic for another eye surgery subsequent to this one. [ 105 ] Did the disclosure which I have found Dr. Hennig made to Mr. Loyie satisfy the standard of care? [ 106 ] Dr. Hennig had a duty to disclose the material risks of the surgery, including those associated with the method of anaesthesia he recommended.

I am satisfied he did so. [ 107 ] I am also of the view he had a duty in this case to outline any alternative methods for anaesthesia involving equal or less risk to use of retrobulbar anaesthetic. However, it was appropriate for him to offer his recommendation with an explanation why he was making it. [ 108 ] I find there was no duty on Dr. Hennig to discuss the peribulbar as distinct from retrobulbar technique. Dr. Smith said in cross-examination few ophthalmologists would have discussed with patients the differences between the two methods. They would simply have talked about a needle. Dr.

Hodges agreed with this. Dr. Climenhaga was of the view the risk of perforation in this case would have been similar for both techniques. He and Dr. Hodges agreed both methods involve insertion of a needle and the anaesthetist cannot see the tip of the needle and, therefore, cannot be absolutely certain of its location. As Dr. Climenhaga commented in his report: “ Retrobulbar and peribulbar anesthesia differ more in theory than in practice. ” [ 109 ] In terms of general anaesthetic, Dr.

Smith agreed by 2003 there was a trend away from general anaesthetic as needle anaesthetic was felt to be safer and it was unlikely a 65-year old individual at that time would have cataract surgery under a general. Dr. Climenhaga said his default technique in 2003 was general anaesthetic for patients who were not good candidates for topical anaesthetic. However, he indicated he is now doing more retrobulbars because of the risks of general anaesthesia. In his view, there were no positive reasons to have opted for use of a general in this case. Dr.

Hodges ’ s opinion was that the retrobulbar/peribulbar methods were safer for an elderly patient than using general anaesthetic. [ 110 ] I find there was no duty on Dr. Hennig to offer the option of a general anaesthetic in this case as there were no primary indicators supporting its use, the risks of that method of anaesthesia for Mr. Loyie were greater than the needle method and Mr. Loyie did not express a preference to be asleep for the surgery when Dr. Hennig told him the surgery could be conducted while he was awake. [ 111 ] Dr. Smith did not feel sub-tenon anaesthesia was time efficient or beneficial.

He said it was a method that came out around the

same time or shortly after topical and he did not see an advantage in that method over topical. In his report, he made no mention of that form of anaesthesia. When asked at trial to assume a situation where a patient is outside the boundaries of his comfort level for doing topical surgery, he said he would discuss the other options, and listed peribulbar and general anaesthetic, but not sub-tenon. Dr. Hodges agreed there was no advantage to the sub-tenon method. At trial, he commented it is a very little used technique and the anaesthesia is not as good as retrobulbar in most instances. He agreed with Dr.

Smith it is not as reliable in preventing eye movement and it is not time efficient or beneficial. [ 112 ] Dr. Climenhaga pointed out that with sub-tenon, the inside of the eye is frozen but not the muscle. As a result, there is a lot of eye movement. Also, it requires a puncture of the conjunctiva and tenon ’ s capsule and there is always some bleeding. In addition, the eye has to be patched after the surgery. Given Dr. Hennig ’ s concern about Mr. Loyie ’ s movement and as none of the experts appeared to advocate its use, I find there was no duty on Dr.

Hennig to discuss it as a reasonable alternative in this case or to offer Mr. Loyie that form of anaesthetic. [ 113 ] I have found Dr. Hennig did review with Mr. Loyie the alternatives of topical and needle delivery of anaesthesia. He described the risks associated with the retrobulbar method and advised many surgeries were done with topical anaesthetic but with use of topical there was a risk of movement during the surgery itself. The same risk would have applied to the sub-tenon method. [ 114 ] The Plaintiff takes the position Dr.

Hennig was required to discuss his comfort level in terms of using topical and what other surgeons were doing. I have found he did state many cataract surgeries were being conducted using topical anaesthetic. While Dr. Hennig had a preference at the time for use of retrobulbar anaesthetic, his evidence was if Mr. Loyie had been a good candidate for topical, he would have recommended that method. Dr. Hennig did not believe he was a good candidate. That was an exercise of his judgment. Mr. Loyie does not take issue with that judgment. Given Dr. Hennig was of the view Mr.

Loyie was not a good candidate for the use of topical and Mr. Loyie did not ask for that or some other method of anaesthesia instead of use of the needle or indicate any fear or aversion to needles, Dr. Loyie was not under any obligation to refer Mr. Loyie to another surgeon or to obtain a second opinion. Mr. Loyie was free to obtain a second opinion if he chose to do so. I do not agree Dr. Hennig took use of topical anaesthetic “ off the table. ” He told Mr. Loyie what his recommendation was for anaesthesia and why. [ 115 ] I conclude Dr. Hennig disclosed to Mr.

Loyie the reasonable anaesthetic options a reasonable person in Mr. Loyie ’ s situation would want to know about and he obtained Mr. Loyie ’ s informed consent to the surgery and method of anaesthesia. Mr. Loyie was made aware of the possible risks involved, but chose to proceed with the surgery. It is unfortunate that one of those risks materialized. [ 116 ] If I had concluded Dr. Hennig should have discussed the general and sub-tenon anaesthetic options, I find a reasonable person in Mr. Loyie ’ s position would have agreed to use of retrobulbar anaesthetic as recommended by Dr.

Hennig given the greater risk of general anaesthetic in his circumstances, the risk of eye movement with use of sub-tenon anaesthetic and the lack of therapeutic benefit of the sub-tenon method. [ 117 ] If the parties cannot agree on costs, they may speak to me on the issue within 30 days of the date of this decision. Heard on the 25 th - 27 th days of April and the 1 st - 3 rd days of May, 2012. Dated at the City of Edmonton, Alberta, this 27 th day of February, 2013.

D.A. Sulyma J.C.Q.B.A. Appearances: D.N.E. De Vere and P.J. Rykes (Student-at-law) for the Plaintiff M.L. McMahon and K.A. Duff for the Defendants