McAvena v Byrne, 2013 ABQB 306

Court of Queen ’ s Bench of Alberta Citation: McAvena v Byrne, 2013 ABQB 306 Date: 20130517 Docket: 0003 00372 Registry: Edmonton Between: Kevin McAvena, Melanie Rowland, Nicholas McAvena, by His Next Friend, Kevin McAvena and Her Majesty In Right of Alberta Plaintiffs - and - Paul Joseph Byrne, John Doe 1, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6, Ernest Phillipos, Capital Health Authority, Operating a Hospital Known As the University of Alberta Hospitals, the Board of Governors of the University of Alberta, N. Hery, and M.

Mercy 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 J.M. Ross _______________________________________________________

I. Introduction [ 1 ] This medical malpractice action is brought by parents on behalf of a child, who as a newborn infant, was intubated prior to undergoing heart surgery. The child developed an airway injury requiring a tracheostomy, airway reconstruction surgery and the continued use of a tracheostomy tube for more than seven years. The Plaintiffs alleged negligence including breach of the standard of care and breach of the duty of disclosure on the part of two physicians involved in the child ’ s care (the Defendant Doctors), as well as the hospital and its employees (the Hospital Defendants).

The claims in negligence for breach of the standard of care were dismissed following non-suit applications during the trial. These reasons consider the remaining claims based on the lack of informed consent as a result of a breach of the duty of disclosure. [ 2 ] Two further issues have not been fully argued by the parties: whether the claim was brought within the applicable limitation period; and the assessment of damages. It was agreed that the parties would return to argue these issues if necessary following the release of this decision. II.

Facts [ 3 ] Nicholas McAvena was born on December [...], 1998 in Sturgeon Community Hospital in St. Albert, Alberta. Immediately following his birth Nicholas ’ parents and the attending medical staff noticed that he had a hoarse cry. He was evaluated by a pediatrician, Dr. Harris, who ordered an x-ray and attempted a direct laryngoscopy, a visual examination of the larynx. Dr.

Harris noted erythema (redness) and swelling around the vocal cords. [ 4 ] On December 23, 1998, Nicholas was transferred in an incubator via ambulance to the University of Alberta Hospital (UAH) Neonatal Intensive Care Unit (NICU) for a consult with Dr. Elliott, a pediatric Ear Nose and Throat (ENT) specialist. The differential diagnosis noted by the neonatal transport team included “ airway obstruction ” . During the transfer, it was observed that Nicholas had a heart murmur. [ 5 ] On his arrival at the UAH, Nicholas was assessed by a cardiologist who determined that Nicholas required open heart surgery.

His parents were advised that this was the urgent priority and had to be dealt with first, before the assessment of his airway. They met with the heart surgeon, Dr. Rebeyka, who described the surgery and obtained their consent to have Nicholas intubated. Nicholas ’ parents understood that he had to be intubated for the surgery and that Nicholas could die without the surgery. [ 6 ] Nicholas was intubated on December 24, 1998. Hospital records indicate he was “ electively intubated for congestion/failure ” .

It is not clear who performed the initial intubation. [ 7 ] Nicholas underwent heart surgery on December 27, 1998. On December 30 th he was returned to the NICU. Subsequently, three attempts were made to extubate Nicholas, on December 31, 1998, January 3, 1999 and January 6, 1999. Each attempt was unsuccessful, with Nicholas struggling for breath and having to be reintubated.

On the third extubation Nicholas underwent an episode of cardiac arrest and had to be resuscitated, as well as reintubated. [ 8 ] Both parents testified that possible airway injury was not discussed at the time of the attempts to extubate Nicholas. They asked why Nicholas could not breathe on his own and were told he “ wasn ’ t ready ” . There was no discussion of a possible tracheostomy until after Nicholas went into cardiac arrest on January 6, 1999. [ 9 ] Nicholas was assessed by Dr. Elliott, the ENT specialist, after the third extubation and reintubation. Dr.

Elliott performed a bronchoscopy on January 7, 1999, and discovered a severe glottic and subglottic airway injury (an injury at and below the vocal cords), requiring a tracheostomy. The tracheostomy was performed on January 8, 1999. Nicholas had a tracheostomy tube for approximately seven and a half years until its final removal on June 15, 2006. Dr.

Elliott performed a number of procedures on Nicholas over these years and, in diagnostic notes and operative reports, stated on several occasions his view that Nicholas ’ airway injury was likely caused at least in part by prolonged intubation or multiple intubations. Dr. Elliott also indicated on several occasions that there was likely a

congenital element to the injury. [ 10 ] The Defendant Doctors, Dr. Phillipos and Dr. Byrne, are neonatologists who at the time were with the NICU at the UAH. Dr. Phillipos was part of the consulting team who met with Nicholas ’ parents on his admission to the NICU and who requested consultations with both Dr. Elliott, with respect to Nicholas ’ airway, and with Dr. Coe, a cardiologist. The cardiology consult took place on the day it was requested, Dec. 23, 1998. The ENT consult was not regarded as urgent and did not take place at that time. Dr.

Phillipos was also involved on January 6, 1999 when CPR was performed on Nicholas. Dr. Phillipos reintubated Nicholas on that occasion. Dr. Byrne saw Nicholas on the NICU between January 2 and 6, 1999, after Nicholas had been returned to the NICU following heart surgery. Dr. Byrne directed Nicholas ’ extubation on January 3, 1999 and was present when Nicholas was extubated on January 6, 1999. [ 11 ] Both Dr. Phillipos and Dr. Byrne gave evidence on examination for discovery which was read in at trial.

They both stated that intubation can cause damage to a baby ’ s airway, particularly if the baby has a congenital abnormality in the airway of the type that could cause a hoarse cry. Dr. Phillipos stated that “ injury usually occurs when there are multiple intubations or when the tube moves a lot ” or when it is difficult to insert the tube, and that some congenital abnormalities in the airway could make it difficult to intubate the baby. Dr.

Byrne stated that risks of intubation and extubation, and of having an endotracheal tube in place, include the possibility of injury to the airway, and that this risk is increased if there is a congenital abnormality causing a hoarse cry. [ 12 ] Mr. and Mrs. McAvena both gave evidence that they were never informed of the risk of injury to Nicholas ’ airway or the risk that he would require a tracheostomy, either before the initial intubation or during the series of extubations and intubations. Both stated that if they had been made aware of this at any time, they would have insisted on an ENT consultation.

They had been concerned about Nicholas ’ airway from his birth, and knew that Nicholas had in fact been admitted to the UAH for an ENT consultation. [ 13 ] Dr. Byrne gave evidence that he did not advise Nicholas ’ parents about the risks of extubating Nicholas, and that he was not aware of other medical practitioners telling them about those risks. Dr. Phillipos did not give evidence on this point. [ 14 ] Non-suit applications were brought by the Defendant Doctors and the Hospital Defendants following the Plaintiffs ’ evidence.

In oral reasons, I allowed the non-suit applications in relation to claims in negligence for breach of the standard of care and claims in contract. [ 15 ] I did not allow the non-suit applications of the Defendant Doctors and the Hospital Defendants so far as the applications related to claims for breach of the duty of disclosure or lack of informed consent. The Defendants were entitled to call evidence in response to those claims. The Defendant Doctors elected to call one expert witness in response, Dr. Derek Drummond, a pediatric ENT specialist.

The focus of his evidence was whether an earlier ENT consult, that the Plaintiffs state they would have insisted on, would have made any difference to Nicholas ’ outcome. [ 16 ] Dr. Drummond is the Chief of Pediatric and Airway Surgery at the Alberta Children ’ s Hospital in Calgary. He deals with airway issues in newborns, and has extensive experience in the intubation and extubation of newborns and performing tracheostomies on babies and children. [ 17 ] Dr.

Drummond testified that, if he as an ENT specialist was asked to provide an ENT consult to a child who presented as Nicholas did, and knowing that child was to undergo open heart surgery in the near future, he would have required that the child be brought in control, from a cardiac perspective, before providing an ENT consult. He noted that the initial consult sought regarding Nicholas was in relation to his voice, and stated that Nicholas was too sick at that time to take any steps to assess or treat his voice. [ 18 ] Dr. Drummond was asked, if he had provided a consult, what evaluations he would have ordered.

He indicated that, other than an x-ray which had already been obtained, imaging tools would have not likely been available for a child as sick as Nicholas. The “ gold standard ” for looking at the airway is a bronchoscopy. A bronchoscopy requires a general anaesthetic and can itself cause airway injury. He would not consider it a prudent procedure for a child, like Nicholas, who was at high risk for any intervention. An evaluation of Nicholas ’ hoarse cry and possible stridor (noisy breathing) would thus have had to wait until Nicholas was stable from a cardiac perspective. [ 19 ] Dr.

Drummond indicated that Nicholas needed to be intubated for heart surgery, and that he would not have delayed this

[19] Dr. Drummond indicated that Nicholas needed to be intubated for heart surgery, and that he would not have delayed thisprocedure. The only option other than intubation would have been an immediate tracheostomy, but this was not a real option. InEdmonton in 1999 the heart surgery would not have been performed with a tracheostomy. Further, a tracheostomy would not have beenoffered because the risk of airway stenosis (narrowing) resulting from intubation was less than 1%.

A form of laser surgery performed onNicholas in later years was not an option for a newborn baby with a heart defect. [20] In these circumstances, Dr. Drummond’s advice on an ENT consult would have been limited to having the person whoperformed the intubation advise him if difficulties were encountered. Dr.

Drummond noted that he had reviewed the medical recordspertaining to Nicholas, and that none indicated any difficulty in intubation until January 6, 1999, at which time an ENT consult wasarranged. [21] The fact that Nicholas was unsuccessfully extubated on two prior occasions would not have been significant to Dr.Drummond, as this is very common in newborns and can be a result of cardiac and lung issues, rather than airway issues. The fact thatsome intubations required two attempts would also not have been significant to Dr. Drummond. This is common and is not an indicationof an airway problem. [22] Dr.

Drummond would not have performed the intubation himself or have given advice as to how to intubate. Medicalpersonnel working in the NICU, including respiratory technologists and nurses, are experienced with the procedure. The practice isalways to try to limit the duration of intubation, because it is known that it can cause damage.

There is always tube movement duringintubation, although intensive care units are good at restricting the amount of movement. [23] A possible option in relation to the intubation would have been to use a smaller endotracheal tube rather than the standard 3.5millimetre size that was used on Nicholas. However, it was very unlikely that a tube smaller than 3.0 millimetres could have been usedbecause of the need to secure the airway during the heart surgery. [24] From reviewing Nicholas’ medical records, Dr. Drummond observed that Nicholas underwent a number of other surgicalprocedures following his heart surgery.

In separate surgeries in February 1999, Nicholas had a cholecystectomy (removal of the gallbladder), gastric surgery involving the insertion of a gastronomy tube, and further gastric surgery to repair a gastric perforation. Dr.Drummond testified that in his experience, children with problems of this nature will in all likelihood require a tracheostomy. [25] In

summary, Dr. Drummond’s opinion was that an earlier intervention by an ENT specialist would not have changed themanagement of Nicholas’ treatment in relation to intubation and extubation and would not have changed the outcome. Nicholas wouldhave had to undergo a tracheostomy in any event. [26] As to his practice in obtaining consent to intubate, Dr. Drummond will advise parents of the risks associated with anaesthesia.He will only tell them about the risk of airway stenosis if he feels it is a high risk in the circumstances.

He will not tell parents about therisk of a tracheostomy with a standard intubation because the risk is very small. III.

Law and Analysis [27] The elements of an action for lack of informed consent are: (1) the physician has a duty to make disclosure to the patient ofall material risks attending the proposed care; and (2) if a lack of disclosure is shown, the patient must prove that, had a reasonableperson in the circumstances of the patient known of the risk, that reasonable person would not have consented to the treatment: Reibl vHughes, (SCC), [1980] 2 SCR 880 at para 4; Arndt v Smith, (SCC), [1997] 2 SCR 539 at para 17. 1) Who had a Duty of Disclosure? [28] The Defendant Doctors and the Hospital Defendants submit that they did not owe a duty of disclosure to Nicholas’ parents inrelation to the intubation.

It was Dr. Rebeyka who obtained consent to intubate Nicholas. While Dr. Phillipos, Dr. Byrne and several

hospital employees were involved in intubations and extubations of Nicholas, it is their position that Dr. Rebeyka, not they, owed theduty to disclose the risks of intubation and extubation. [29] The case law on this point is summarized in Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed,(Toronto: Thomson-Carswell, 2007) at 169-70: Modern medical practice inside and outside of hospital frequently puts a patient in the care of more than one doctor or health careprofessional.

Furthermore, the common practice of doctors in hospitals has often been to have a nurse or member of the house staffprovide information about treatment to the patient. However, it is clear from the decided cases that the doctor (or other healthprofessional) who will be performing the treatment is the one who is ultimately responsible for ensuring that the patient is properlyinformed.

That doctor will be liable if he or she incorrectly assumes that the necessary information has been given to the patient bysomeone else, such as a nurse or a junior colleague. [30] It appears that each “treatment” requires the disclosure of material risks and each health professional who performs thattreatment is responsible for ensuring the patient is properly informed.

For example, it is the anaesthetist, not the surgeon, whose duty itis to inform the patient of the material risks of the anaesthetic: Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada,at 170; citing Thiessen v Hota, 2005 MBQB 248 (Master). [31] In this case the treatment consisted of not only the initial intubation, but also the series of attempted extubations.

Had theinformation about the risks of airway injury associated with both prolonged intubation and multiple unsuccessful extubations beenprovided at the onset, it would not have been necessary that this information be repeated by each physician involved in providingtreatment: Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada, at 170; citing Ferguson v Hamilton Civic Hospitals(1983) (ON SC), 144 DLR (3d) 214 (Ont HC), aff’d (1985) (ON CA), 33 CCLT 56 (CA). Butthere is no evidence that this information was given. [32] There is no evidence that Dr.

Phillipos was involved in either the initial intubation or the extubations. His sole involvementwas in reintubating Nicholas after Nicholas had undergone cardiac arrest. This was an emergency procedure which was immediatelynecessary to save Nicholas’ life. Consent and the duty to disclose does not apply in this circumstance: Picard & Robertson, LegalLiability of Doctors and Hospitals in Canada, at 57-58. [33] On the other hand, Dr. Byrne directed Nicholas’ extubation on January 3, 1999 and was present when Nicholas wasextubated on January 6, 1999. These were not emergency procedures. I conclude that Dr.

Byrne had a duty to disclose material risks ofthese treatments. Dr. Byrne did not advise Nicholas’ parents about the risks of extubating Nicholas, and was not aware whether othermedical practitioners had so advised them. [34] The key issue in determining if a nurse or other non-physician medical professional has a duty of disclosure is who isresponsible for prescribing or authorizing the treatment. If a nurse acts alone, then the nurse has a duty to disclose the material risksassociated with the treatment.

If the treatment is administered by a nurse under the direction or order of a doctor, then the duty ofdisclosure rests with the doctor: Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada, at 172. The evidence is thatwhile the intubation and extubations may have been performed by nurses or respiratory technologists, they were directed by physicians. Iconclude that the Hospital Defendants did not have a duty to disclose the risks of those procedures. 2) Material Risk [35] Dr.

Byrne gave evidence that there is a risk of airway injury associated with intubation and extubation which is increased ifthere is a congenital abnormality causing a hoarse cry. There is no expert evidence that neonatologists would regard this as a materialrisk that should have been disclosed. As a paediatric ENT specialist, Dr. Drummond will only advise parents of the risk of airwaystenosis if he feels it is a high risk in the circumstances.

He does not advise of the risk of a tracheostomy because the risk is so small. [36] However, the Supreme Court of Canada has held that whether a risk is material does not depend exclusively on expertmedical evidence.

[37] In Hopp v Lepp, (SCC), [1980] 2 SCR 192 at p 209, Laskin C. J. stated: ...Indeed, since a particular patient is involved upon whom particular surgery is to be performed or particular therapy administered, and itis a duty of disclosure to him that affects the validity of his consent, evidence of medical experts of custom or general practice as to thescope of the disclosure cannot be decisive, but at most a factor to be considered. [38] In Riebl v Hughes, (SCC), [1980] 2 SCR 880, Laskin C.

J. stated at p 895: The materiality of non-disclosure of certain risks to an informed decision is a matter for the trier of fact, a matter on which there would,in all likelihood, be medical evidence but also other evidence, including evidence from the patient or from members of his family. ... [39] In Ciarlariello v Schacter, (SCC), [1993] 2 SCR 119, Cory J. for the majority explained Riebl v. Hughesand stated at p 133: Riebl v. Hughes, supra, indicates that the disclosure which must be made to a patient will often be more than that which the medicalprofession might consider appropriate to divulge.

Although expert medical evidence on this issue is still relevant, it is no longer decisivein determining whether or not sufficient information was given to a patient to enable that patient to make an informed consent. The testnow focuses on what the patient would want to know ... [40] In my decision on the non-suit application, I concluded that there was some evidence of the materiality of the risk of anairway injury.

This was something the Plaintiffs would have wanted to know, especially in view of the fact that concerns had alreadybeen raised about Nicholas’ airway. [41] The other evidence in the trial does not displace the Plaintiffs’ evidence in this regard. Dr. Byrne acknowledged the risk ofairway injury and the increased risk where there is a congenital abnormality causing a hoarse cry. Dr. Drummond will advise parents ofthe risk of airway stenosis if he feels it is a high risk in the circumstances. [42] I conclude that Dr.

Byrne should have disclosed to Nicholas’ parents the risk that an airway injury could result from multipleextubations and intubations. 3) Informed Consent and Causation [43] The cause of action in a failure to disclose/lack of informed consent case is negligence. Therefore, as with all negligenceclaims, a patient must establish a causal link between the doctor’s negligence and the injury that occurred. Since the alleged negligenceis the doctor’s failure to provide material information, the lack of disclosure must be shown to have caused the injury.

If this is not done,the claim will be dismissed: Snell v Farrell, (SCC), [1990] 2 SCR 311 at para 33. [44] If it is determined that the doctor failed to adequately disclose material risks of a procedure or alternative treatments, a courtmust apply the modified objective test and inquire whether a reasonable person in the circumstances of the patient would have consentedto the procedure if all the material information, including material risks, had been disclosed: Reibl v Hughes, (SCC),[1980] 2 SCR 880; Arndt v Smith, (SCC), [1997] 2 SCR 539.

If the plaintiff would have consented and undergone thetreatment in any event, the doctor’s negligence cannot be said to have been the cause of the injury. [45] In addition, to prove causation, the plaintiff must establish that the treatment provided was the actual cause of the plaintiff'sinjuries: Whitt v Purkin, 2008 ABQB 666 at para 48; Seney v Crooks (1998), 1998 ABCA 316 , 166 DLR (4th) 337 at para 98

(Alta CA) ; Cory v Bass , 2011 ABQB 360 at para 116 , aff ’ d on other grounds 2012 ABCA 136 . This aspect of causation is established in this case by the uncontradicted opinion of Dr.

Elliott in post-operative reports that Nicholas ’ airway injury was likely caused by prolonged intubation or multiple intubations (along with a potential congenital element). [ 46 ] The basic test for determining causation is the “ but for ” test which requires the plaintiff to show on a balance of probabilities that “ but for ” the defendant ’ s negligent act, the injury would not have occurred: Clements v Clements , 2012 SCC 32 at para 8 . [ 47 ] The "but for" causation test must be applied in a robust and common sense fashion.

The standard of proof does not require scientific certainty: Clements v Clements , 2012 SCC 32 at para 9 . Evidence connecting the defendant ’ s negligence to the injury suffered may lead to an inference that the negligence probably caused the loss.

Where "but for" causation is established by inference, the defendant may respond by calling evidence that the accident would have happened without the defendant's negligence, that the negligence was not a necessary cause of the injury, or that the injury was inevitable: Clements v Clements , 2012 SCC 32 at paras 10-12 . [ 48 ] The Plaintiffs have asked the Court to find that Nicholas was exposed to a greater risk of injury as a result of the failure to disclose and that liability should flow from this.

This argument reflects the “ material contribution to risk ” test, which the Supreme Court of Canada has held does not apply in the circumstances present in this case. That test only applies in the exceptional case where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but where it is established that one or more negligent acts did in fact cause the injury. As stated in Clements v Clements at paragraph 46 : Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (

a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (

b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [ 49 ] Causation according to the “ but for ” test in a failure to disclose cause of action is relatively easy to establish where the plaintiff demonstrates that, under the modified objective test, he or she would not have undergone the treatment if informed of all of the risks.

By not undergoing the treatment, the plaintiff would have avoided the damage. Therefore, “ but for ” the lack of disclosure, the injury would not have occurred.

a) Causation: Alternative Treatment, Second Opinion or Delayed Treatment [ 50 ] Causation according to the “ but for ” test may be more difficult to prove when a plaintiff would not have declined treatment altogether, but would have pursued an alternative treatment, or have obtained a second opinion or delayed treatment. That is the Plaintiffs ’ situation in this case. They argue that they would have sought an ENT consult and that this could have resulted in changes in Nicholas ’ treatment.

The initial intubation might have been delayed for up to a few days, a smaller endotracheal tube might have been used, and there might have been fewer unsuccessful extubation attempts. [ 51 ] In cases where an alternative treatment is available and not disclosed to the plaintiff, the plaintiff must establish he would not have had the treatment if properly informed, and that the alternative treatment would not have produced the same or a more serious injury: Zaiffdeen v Chua , 2005 ABCA 290 at para 35 . [ 52 ] In my view a similar approach is warranted where the plaintiff agrees he still would have had the treatment but only after a second opinion.

This is an “ alternative treatment ” because the plaintiff would still have received some form of treatment, although there may have been differences in how the treatment would have been performed.

Therefore, the plaintiff should have to prove that the treatment provided after the second opinion would not have produced the same injury, just as a plaintiff must prove an alternative treatment would not have produced the same injury. [ 53 ] The additional burden of showing that different treatment would not have produced the same injury has been applied in cases where plaintiffs have stated they would have had the treatment performed in a different location or by a different doctor.

[54] In Tremblay v MacLauchlan, 2001 BCCA 444, the plaintiff suffered nerve damage during surgery. The trial judge held thatthe doctor had failed to disclose this material risk and that a reasonable person would have sought a second opinion from a specialist in alarger city and had the surgery done there. The Court of Appeal held that plaintiff had the burden of proving that had a different doctorperformed the surgery at a different hospital, the nerve damage would not have occurred. The plaintiff failed to meet his burden.

TheCourt of Appeal stated, at paragraph 44: There was no evidence in this case to the effect that the surgery would have had a different result if performed by another surgeon.Tending to the contrary is the trial judge's conclusion that the surgery was "meticulously performed." In the face of the evidence and thatconclusion, I consider there was no basis on which to find that the injury would not have occurred, had the disclosure been made.

Inother words, there was no basis on which the trial judge could find that the plaintiff had met his onus of proof on this issue. [55] Similarly, in Halkyard v Mathew, 2001 ABCA 67, the Alberta Court of Appeal held that a plaintiff had to prove causationand that it was not sufficient that a treatment would have been postponed. Mrs. Halkyard died as a result of a pulmonarythromboembolism following a total hysterectomy. Her estate alleged that her doctor breached the duty to disclose by failing to inform herthat he suffered from epilepsy.

The plaintiff admitted that she still would have agreed to the surgery, but argued that she would haveconsulted another surgeon. At trial the judge found that the doctor had not had an epileptic seizure in the operating room, nor sufferedany ill effects from his medication. As a result, there was no causal connection between the epilepsy and the death of Mrs. Halkyard.

TheCourt of Appeal agreed that there was no causal connection between the failure to disclose the information and the damage suffered,noting that “nothing in the evidence suggests that the consequences would have been avoided by another surgeon” (para 10). [56] Further support for the principle that a plaintiff must do more than simply speculate that the injury could have been avoidedby consulting a different physician is found in the obiter of the Supreme Court of Canada decision in Hopp v Lepp, (SCC), [1980] 2 SCR 192. Dr. Hopp was a surgeon practicing in Lethbridge, Alberta.

He performed a disc operation on Mr. Lepp. Mr.Lepp did not improve as expected and it was subsequently determined that problems still existed. A Calgary neurosurgeon performed anextensive operation to address the problems. Mr. Lepp was left with permanent disability that was attributed to the second surgery, asurgery that may have been unnecessary if the first surgery was successful. Mr. Lepp sued Dr. Hopp for damages in negligence and inbattery based on a lack of informed consent, alleging that Dr. Hopp had the duty to tell Mr.

Lepp that if there were complications hewould not be able to call on a neurosurgeon because there were none in Lethbridge at the time. [57] The trial judge found that Dr. Hopp did not breach his duty of disclosure, and that, in any event, causation had not beenproven because the evidence established the surgery performed by Dr. Hopp would have been the same if performed in Calgary. Thetrial judge stated: With respect to the alleged assault upon the plaintiff, had I found that this had been established I could not find that any damages flowedfrom such assault.

The operation performed upon the plaintiff by the defendant was required to be performed and is no doubt the sameoperation which would have been performed upon the plaintiff had he gone to Calgary for advice and treatment. The operation wasproperly and adequately carried out by the defendant and undoubtedly achieved the same results as would have been obtained in Calgary.I would, therefore, have been in a position where I would have awarded the plaintiff only token damages. [58] This conclusion was rejected by the majority of the Alberta Court of Appeal in Lepp v Hopp (1979) 1979 ALTASCAD 76, 15 AR 472 (AB CA).

The majority held that the damages suffered by Mr. Lepp could be attributed to Dr. Hopp’s lack ofdisclosure.

The majority stated, at paragraph 69: The evidence does leave it open for the trial Judge to have reasonably found that had the operation been in Calgary, rather than inLethbridge (accepting that there would have been consent to the operation in any event) the problem which arose from the first operationand which made the second operation necessary might at least have been discovered earlier with less possible neurological deficit. [59] Upon further appeal, the Supreme Court agreed with the trial judge that Dr.

Hopp did not breach the duty of disclosure.Laskin C.J. went on to state that the majority of the Alberta Court of Appeal “made two statements going to causation and to damageswhich I also cannot accept”. Laskin C.J. cited paragraph 69 and stated that these reasons of the Court of Appeal “at the most, go tosuggest that the patient might possibly have suffered less damage if he had gone to Calgary in the first place. This was highly conjecturaland cannot form the basis of a judgment for the patient”: Hopp v Lepp, (SCC), [1980] 2 SCR 192 at p 211.

[60] This statement that the plaintiff could not succeed based merely on conjecture, supports the position that a plaintiff bears theonus of proving that a different treatment would have avoided the unfavorable outcome.

b) Postponement Sufficient to Prove Causation [61] There are authorities which indicate that a decision to postpone a treatment may sometimes be sufficient to establishcausation. In Reibl v Hughes, the patient suffered a stroke as a result of competently performed surgery. The surgeon had not advisedhim of the risk of stroke following surgery, but had stressed the chances of paralysis if he did not undergo surgery. There was noemergency making the surgery imperative.

The patient testified that, had he known of the risk, he would have forgone the surgery for atleast a year and a half, until his employment pension had vested. Laskin CJ held that it had been proven that “a reasonable person in theplaintiff’s position would have . . . have opted against the surgery rather than undergoing it at the particular time”: Reibl v Hughes, (SCC), [1980] 2 SCR 880 at 928.

That was sufficient to establish causation. [62] Other cases are to similar effect: Felde v Vein & Laser Medical Centre, [2002] OJ No 3686 (Ont SupCtJust), Ross v Welsh,[2003] OJ No 3141 (Ont SupCtJust), Semeniuk v Cox, 2000 ABQB 18, and Martin v Capital Health Authority, 2007 ABQB 260. [63] The common factor in these cases is that the plaintiffs would have postponed treatment to an uncertain date.

For example, inSemeniuk v Cox, the plaintiff would have “postponed the surgical procedure in the circumstances until she had more information andhad attempted less risky ways of maintaining her more healthful weight level or until after she and her husband had completed theirfamily”: Semeniuk v Cox at para 24. In Ross v Welsh, the court concluded “that a reasonable person fully informed with Mrs. Ross'history and aversion to surgery would explore conservative methods of treatment before trying the treatment of last resort”: Ross v Welshat para 157.

In Martin v Capital Health Authority, the plaintiff “would not have consented to the operation at that particular time. Hewould have postponed it, until after the fall wedding”: Martin v Capital Health Authority at para 97. [64] These cases are different than a situation involving a delay to consult another physician. In these decisions, the plaintiffswould have postponed the treatment to an uncertain date and may not have undergone the treatment at all. Using a common sense androbust approach to causation, the plaintiffs met the “but for” test.

They proved that they would not have undergone the treatment andtherefore would not have suffered the resulting damages. The argument that they would eventually have received the treatment andsuffered damages is merely speculative, and does not tip the balance of probabilities. [65] These cases are distinguishable from a situation where a plaintiff would have delayed treatment for at most a short period toconsult with another physician. In the latter situation, for the reasons given above, the plaintiff bears the burden of proving that thedamage would have been avoided.

c) Conclusion: Law regarding Causation and Delay for Second Opinion [66] In actions for loss because of the failure to disclose, causation must still be established by the plaintiff according to the “butfor” test. If the plaintiff agrees they still would have undergone the treatment after a brief delay to consult with another physician, thenthe plaintiff bears the onus of establishing that the injury would have been avoided by taking these steps. If the plaintiff fails to establishthis, then the plaintiff has failed to prove that the failure to disclose caused the injury.

d) Application to the Facts [67] The uncontradicted evidence of Dr. Drummond satisfies me, on a balance of probabilities, that an ENT consult would nothave made a difference to Nicholas’ outcome. [68] Dr. Drummond gave the opinion that had the Plaintiffs sought an ENT consult, the ENT specialist would have required thatNicholas’ cardiac issues be dealt with before the consult was provided at all, or certainly before a bronchoscopy was performed to assessthe condition of Nicholas’ airway. An ENT consult would not have delayed the intubation, which was a necessary procedure given

Nicholas ’ imminent heart surgery. There were no realistic alternatives to intubation in this situation. An ENT consult also would not have made any changes in the intubation and extubation procedures performed on Nicholas. There were no unusual difficulties observed during these procedures until the third attempt, at which time an ENT consult was obtained. [ 69 ] In

summary, an ENT specialist would likely have declined to intervene any earlier if consulted, and an earlier ENT intervention would not in any event have changed the management of Nicholas ’ treatment or his outcome. IV. Conclusion [ 70 ] In conclusion, neither Dr. Phillipos nor the Hospital Defendants owed a duty of disclosure with regard to the risks of intubation and extubation. While Dr.

Byrne did owe a duty of disclosure, and while material risks of airway damage were not disclosed to the Plaintiffs, this failure to disclose has not been proven to have caused Nicholas ’ injuries. [ 71 ] The Plaintiffs ’ claim based on failure to disclose is dismissed. [ 72 ] In view of this conclusion, it will not be necessary for the parties to reappear before me to argue the issues of the limitation period or the assessment of damages. Heard on the 8 th to12th and 15 th to 18th days of April, 2013. Dated at the City of Edmonton, Alberta this 17th day of May, 2013. J.M. Ross J.C.Q.B.A. Appearances: Mr.

Kevin McAvena and Ms. Melanie Rowland On their own behalf (Plaintiffs) Ms. Chelsey L Bailey Mr. Marc Yu

for the Co-Defendants Mr. James J. Heelan, Q.C. Ms. Morgan C. Edgar for the defendant Physicians