Sabey v Whidden, 2016 ABQB 487

Court of Queen’s Bench of Alberta Citation: Sabey v Whidden, 2016 ABQB 487 Date: 20160831 Docket: 1301 09509 Registry: Calgary Between: Madison Stoutjesdyk Sabey Plaintiff (Respondent) - and - Dr. Paul Whidden Defendant (Appellant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ Appeal from the Oral Decision by J. R. Farrington, Master in Chambers Dated the 27 th day of November, 2015

I. Introduction [ 1 ] On November 27, 2015, a Master dismissed an application by Dr. Paul Whidden for

summary dismissal of the claim brought against him by Madison Stoutjesdyk Sabey. This is an appeal of that decision. [ 2 ] The claim, which was originally brought in Provincial Court, arises out of breast surgery performed on the Plaintiff by Dr. Whidden on October 21, 2010 to provide asymmetrical correction and enhancement to her breasts. The claim alleges that Dr.

Whidden put in a larger implant than was agreed upon; that he stated that he had initially placed a smaller implant in but “ripped it out” and put a larger one in because it was too small; that she suffered severe nerve damage, pain, heaviness and a larger left breast compared to the right; that her left breast falls into her armpit when lying on her back; that she has suffered migraines since the surgery and has incurred substantial expenses for psychological counselling, chiropractic sessions, massage therapy and acupuncture. [ 3 ] Dr. Whidden states in his Dispute Note that: Ms.

Sabey initially selected a 350 cc sizer on the right side and a 400 cc sizer on the left; he explained the risks and potential complications of the surgery; she executed two patient brochures outlining the operative risks; and she executed a change form on August 6, 2010 to have a 275 cc sizer on the right and a 325 cc sizer on the left, and to have silicone gel rather than saline implants. On the day of the surgery she agreed to his recommendation that saline implants would provide better correction of her pre-existing asymmetry.

She also agreed that he would use 300 cc of volume on the right to match the look of the 275 cc sizer and a 325 cc implant on the left filled between 325 and 350 cc. Ms. Sabey expressed no concerns on her follow-up appointment on December 14, 2010. She first raised a concern about breast size and breast numbness with him in July of 2012. Dr. Whidden denies that he removed an implant during the course of the procedure and claims that his treatment was reasonable, skillful, careful and was consistent with the proper practice of a surgeon practicing in Calgary, Alberta. He denies that any damages suffered by Ms.

Sabey resulted from any negligence or breach of contract by him and claims that any losses are due to her own negligence and failure to mitigate. [ 4 ] The matter was transferred to Queen’s Bench on July 26, 2013. Dr. Whidden’s

summary dismissal application was heard by a Master on September 22 and November 16, 2015; the application was dismissed. II. Analysis A. Standard of Review [ 5 ] The standard of review on an appeal from a Master is one of correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 , at para 30 . B. Test for

Summary Judgment [ 6 ] The Master identified the correct legal test to be applied when determining whether

summary dismissal should be granted as outlined in paragraphs 49 – 50 of the Supreme Court of Canada decision in Hryniak v Mauldin , 2014 SCC 7 . He also noted that the Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd , 2014 ABCA 108 , pointed out that “a party faced with an application for

summary judgment must put its best foot forward and present evidence to show sufficient ‘merit’ to establish a genuine issue requiring a trial with respect to the outstanding issues” and that, “speculating that evidence might be available at a trial is not sufficient” (para 21). C. Medical Negligence Actions [ 7 ] Campbell, J summarized the ele m ents that must be established in a medical negligence action in Grivicic v Alberta Health Services (Tom Baker Cancer Centre) , 2015 ABQB 811 , at paras 14 and 15 : To succeed in a medical negligence action, the plaintiff has the onus of proving, on a balance of probabilities, that the following four elements are present: (

a) The physician or hospital owed the plaintiff a duty of care (which is not an issue in this case); (

b) The physician or hospital breached the applicable standard of care established by law; (

c) The plaintiff suffered an injury or loss; and (

d) The physician's or hospital's failure to comply with the applicable standard of care was the actual and legal cause of the plaintiff's loss or injury. This is a sequential test. In applying this test, the court is to determine whether the plaintiff has proved each of the elements in the order in which it is set out in the test.

If the plaintiff fails to prove one of the elements, in the order in which a Court examines them, then the plaintiff's action fails, obviating the need for the court to proceed on with a determination on the remaining elements: Tailleur (Next Friend of) v Grande Prairie General and Auxiliary Hospital , 1999 ABCA 2 at para 15 leave to appeal refused, (1999) 255 AR 397 , [1999] S.C.C.A. No. 116 (SCC) ; McArdle (Estate of) v Cox , 2003 ABCA 106 at para 25 ; [ 8 ] Dr. Whidden admits that he owed Ms. Sabey a duty of care.

He denies, however, that he failed to meet the standard of care required of a plastic surgeon practising in Alberta. He relies on the expert evidence of Dr. Mitchell Brown, who has been the Program Director – Division of Plastic Surgery at the University of Toronto since 2007, and whose curriculum vitae lists numerous peer reviewed

publications and presentations in the area of breast implant surgery. Dr. Brown’s opinion in his initial affidavit was that Dr. Whidden metor exceeded the standard of care owed by a plastic surgeon in Alberta. He based his opinion upon his review of the pleadings, Dr.Whidden’s treatment chart, and the affidavits. [9] Dr. Whidden notes that Ms. Sabey failed to adduce any admissible expert evidence to contradict that provided by Dr. Brown. [10] The Master addressed when a plaintiff will be expected to adduce expert evidence in response to a

summary dismissalapplication brought in a medical negligence action, referring to Stoddard v Montague, 2006 ABCA 109, at paras 18 and 20: It is not always necessary for plaintiffs in medical negligence cases to adduce expert evidence, since in some cases the relevant standardof care or whether a breach caused an injury, will be within the knowledge of the court. However, this is not such a case, as the standardsof care at issue are not obvious.

Moreover, there is nothing to suggest that anything the doctors did caused any of the injuries Stoddardcomplains about, and the materials filed by the doctors demonstrate a prima facie case of their having met the standard of care. … The need for expert evidence for both these issues is obvious. In a medical negligence action, where the allegation of negligence involvesissues outside the ordinary knowledge and experience of the trier of fact,

summary dismissal of the plaintiff's claim is appropriate whenthe plaintiff has failed to adduce any supportive expert opinion: Claus v. Wolfman (1999), (ON SC), 52 O.R. (3d)673 at para. 12 (S.C.J.), aff'd (2000), (ON CA), 52 O.R. (3d) 680 (C.A.); Tamimi v. Toronto Hospital (WesternDivision) (1999), (ON CA), [1999] O.J. No. 2632, 123 O.A.C. 182 at para. 2, leave to appeal to S.C.C. ref'd (2000),[1999] S.C.C.A. No. 464, 256 N.R. 198n. If all the plaintiff does is assert that evidence will or may come out at trial and that thepleadings and allegations made during argument support issues for trial, he or she will not be successful in preventing

summary dismissalin the face of overwhelming evidence that the alleged perpetrators were not negligent, did not cause the injuries complained of, and metthe relevant standard of care: Brown v. Northey (1991), 1991 ABCA 75 , 115 A.R. 321 at para. 11 (C.A.); Jager Industries Inc.v. Canadian Occidental Petroleum Ltd. (2000), 273 A.R. 1, 2000 ABQB 592 at para. 21; Dawson v. Rexcraft Storage and WarehouseInc. (1998), (ON CA), 164 D.L.R. (4th) 257, 111 O.A.C. 201 at para 17. [11] In this case Ms. Sabey did not provide any expert evidence by way of affidavit. She simply attached to her affidavit astatement from Dr.

Semeniuk, her family physician, which stated that she can “confirm that there is a correlation of the documentedsymptoms of left chest pain, tenting of the breast with peet major muscle contractions, fatigue, migraines, joint stiffness, depression thatoccurred directly after the time of the breast implant surgery of Oct 21, 2010”. She also attached a letter from Dr. Melmud, identified as aplastic surgeon from Dallas, Texas. It states in part: The implants are too large for her frame, and have ‘bottomed out’. She is tender on the interior lateral portion of the left breast where theimplant is palpable.

She has a sub-muscular deformity from release of the Pectoralis muscle. The areolae are wider than normal. She hasa Baker grade 2-21/2 capsule. The implants are palpable on both sides especially inferiorly. Relief of pain will only be accomplished by removal of the implants. I feel very strongly that her symptoms will do the same. D. The Master’s Decision [12] In dismissing the

summary dismissal application, the Master noted that while the application was largely argued on thestandard of care component of negligence, it also alleged failure to follow instructions and battery. The Master concluded that he did nothave confidence in making a

summary disposition in favour of Dr. Whidden based upon the record before him. He noted that one of Ms.Sabey’s complaints is that she is experiencing permanent pain and numbness since the operation, and that the informed consentdocument executed by her did not appear to warn of the possibility of permanent pain. Ms. Sabey, through her family physician, provideda possible explanation for the pain being a severed nerve; Dr. Whidden provided no explanation. Ms.

Sabey also indicated that Dr.Whidden told her that he had removed an implant he had previously placed in during the surgery, which may be consistent withprolonged pain in the left breast. Further, Ms. Sabey asserted that the implants used were larger than she wanted and that there was noevidence as to how closely the finished size matched up with the preferred finished size that Ms. Sabey chose through the initial sizingprocess. E. Additional Evidence on Appeal [13] At the outset of the appeal, Dr.

Whidden sought leave to adduce two further affidavits, one from him and one from Dr.Brown, pursuant to rule 6.14(3) of the Alberta Rules of Court, Alta Reg 124/2010. [14] Rule 6.14(3) provides that an appeal is based “…on the record of proceedings before the master and may also be based onadditional evidence that is, in the opinion of the judge hearing the appeal, relevant and material.” The test for adducing new evidence onan appeal is a “very lax” test: (Boyd v Cook, 2013 ABCA 266, at para 5).

As such, I allowed the additional evidence to be admitted; itwas relevant and material. [15] The additional evidence addresses some of the items which had been of concern to the Master. With respect to Ms. Sabey’sconcerns about the size of implants selected, Dr. Brown’s opinion was that the care and treatment provided by Dr. Whidden met orexceeded the standard of care owed by a plastic surgeon in the province of Alberta. More specifically, Dr. Brown found that Dr.Whidden’s selection of breast implants was reasonable and appropriate.

The selection was of a 300 cc volume on the right and a 350 ccvolume on the left to simulate the 275 cc and 325 cc sizers, which were selected by Ms. Sabey on the Consent re Change in Implant SizeForm that she executed on August 6, 2010. Based upon the evidence before me, I am satisfied that the size of Ms. Sabey’s implants isthe result of the sizers that she selected and is not the result of any negligence or improper conduct by Dr. Whidden. The part of Ms.Sabey’s claim relating to Dr. Whidden’s alleged failure to use the proper size of implants is therefore dismissed.

[ 16 ] With respect to Ms. Sabey’s concern that she has some lost sensation in her breasts, Dr. Whidden stated in his new affidavit that he discussed the sensory changes that could occur, including complete loss of nipple sensation, prior to the surgery. Dr. Brown stated in his first affidavit that “it is not unusual for patients to have some sensory loss of the breast skin or nipple following breast augmentation”. He expressed his opinion that: Dr.

Whidden performed the surgery in a competent manner, sensory loss is a potential complication that can occur with breast augmentation and the existence of sensory loss does not suggest poor surgical technique or negligent care. Dr. Whidden has demonstrated that Ms. Sabey was informed of the risk of lost sensation and has provided expert evidence that the surgery was done in a competent manner and that sensory loss is a potential complication that can result without negligence. The loss of sensation aspect of Ms. Sabey’s claim is dismissed. [ 17 ] With respect to Ms.

Sabey’s concerns that post-surgery her breasts are still not symmetrical, Dr. Whidden stated in his new affidavit that he discussed the risks and explained to Ms. Sabey that due to her pre-existing asymmetries (right breast larger than left, rib cage asymmetry, and nipple asymmetry), he would use a larger implant on the left to help minimize the difference, but that he would be unable to achieve perfect symmetry. In his first affidavit, sworn on February 18, 2015, Dr. Brown indicates that he reviewed photos taken May 18, 2010 (before surgery) and July 3, 2012 (after surgery).

The photos are not attached to the affidavit and he notes that “due to the quality of the picture, it is difficult for me to comment on any pre-existing asymmetry”. He notes that after surgery “there continues to be a slight asymmetry with the left side sitting slightly lower than the right. The pre-existing nipple asymmetry continues to be evident. As with the pre-operative photographs, it is difficult for me to provide an opinion on volume symmetry based on these images.” Dr. Brown did not address any asymmetry issues in his second affidavit. Furthermore, there is no indication that he ever reviewed Ms.

Sabey’s affidavit, sworn November 10, 2015, in which she provides various ultrasound and photographic images of her breasts that demonstrate some of the problems she complains about including “where the left breast is folded inwards”. [ 18 ] While I am satisfied that Ms. Sabey was advised of possible asymmetry post-surgery, Dr. Whidden has not established that the degree of asymmetry and problems with the shape of the left breast fall within the normal risks of surgery. Dr. Brown’s expert opinion is of little assistance. He did not see Ms.

Sabey in person, he commented on the difficulties presented by the quality of photos available to him when preparing his opinion, and apparently did not see or provide an opinion regarding the photos in Ms. Sabey’s November 2015 affidavit when providing his second opinion. As a result, Dr. Whidden has not demonstrated that Ms. Sabey’s concerns about asymmetry and the shape of her breasts post-surgery are without merit. The application to dismiss the symmetry aspects of her claim is dismissed. [ 19 ] The additional evidence does not address Ms. Sabey’s ongoing permanent pain since the operation. While Dr.

Whidden stated in his new affidavit that he provided a description of the expected pain intensity and duration, as well as medication to help manage the pain, there is still no evidence that he warned her of the possibility of permanent pain of the nature that she claims to be experiencing. [ 20 ] Dr. Brown also does not address the permanent pain complained of by Ms. Sabey in either of his affidavits. In his first affidavit, he states: In the dispute note, Ms Sabey states that she has suffered from migraines as well as permanent pain and discomfort in the left breast.

I am unable to find any documentation in the record where Ms Sabey discussed post-operative pain with Dr. Whidden or with his staff. Pain can occur for a number of reasons following surgery and is a known potential complication of breast augmentation.

This risk was discussed with Ms Sabey as part of the informed consent as documented in the consultation of May 18, 2010. [ 21 ] He goes on to conclude that “the suggested post-operative pain and sensory loss are potential complications that can occur with breast augmentation and do not suggest poor surgical technique or negligent care.” However, it does not appear that Dr. Brown had sufficient information - beyond what is stated in the claim - about the extent and nature of the pain which Ms.

Sabey claims to be experiencing as to enable him to provide an informed opinion that such pain was within the range of post-operative pain that is a typical complication of a properly performed breast augmentation. (While Dr. Brown referred to the Dispute Note, that is a document filed by Dr. Whidden; he was presumably intending to refer to the Claim filed by Ms. Sabey instead.) [ 22 ] Dr. Brown did not address Ms. Sabey’s complaints about ongoing pain in his second affidavit. Furthermore, there is no indication that he ever reviewed Ms.

Sabey’s affidavit, sworn November 10, 2015, in which she sets out the pain she experienced and treatments she has taken following surgery. Dr. Whidden has not provided any explanation for why Ms. Sabey could be suffering permanent pain following the surgery, how it could have been caused, whether permanent pain is a potential risk from any breast implant surgery that might arise in the absence of medical negligence, and, if so, how that risk was brought to her attention prior to the surgery. Dr. Whidden has not demonstrated that Ms.

Sabey’s concerns about ongoing pain and other related health difficulties post-surgery are without merit. Dr. Whidden’s application to dismiss the ongoing pain aspects of her claim is dismissed. [ 23 ] There is contradictory evidence on whether Dr. Whidden removed the left implant during the course of the surgery. In his new affidavit Dr. Whidden expressly denies that he removed and replaced the left breast implant with a larger implant and denies that he advised Ms. Sabey that he did so. He explains that doing so would not be necessary because the size could be, and was, adjusted by adding additional saline.

By contrast, Ms. Sabey states that he clearly explained to her that he did this. This is an issue that is best determined at trial. III. Conclusion [ 24 ] As a result, I allow the appeal of the Master’s decision in part. [ 25 ] I am varying the decision below to strike the portion of Ms. Sabey’s Claim that relates to allegations that Dr. Whidden failed to use the proper size of implant as well as her claims relating to loss of sensation in her breasts following surgery. However, as Dr. Whidden has not demonstrated that Ms.

Sabey’s claims relating to post-surgery breast shape and asymmetry and the ongoing pain and related health issues following the surgery are without merit, those claims can proceed to be determined at trial. [ 26 ] Success on this application has been divided. If the parties are unable to agree on costs, they may each provide written submissions within 30 days.

Heard on the 6 th day of May, 2016. Dated at the City of Calgary, Alberta this 31st day of August, 2016. J. Strekaf J.C.Q.B.A. Appearances: Madison Stoutjesdyk Sabey, Self-Represented for the Plaintiff/(Respondent) Kristian A. Duff and Jessie Larter for the Defendant/(Appellant)