2022 QCCQ 2214, 2022 QCCQ 2214

C.W. c. Arbour 2022 QCCQ 2214 COUR DU QUÉBEC « Division des petites créances » CANADA PROVINCE DE QUÉBEC DISTRICT DE LONGUEUIL « Chambre Civile » N° : 505-32-037458-198 DATE : April 28, 2022 ______________________________________________________________________ Presided by the HONOURABLE DANIEL LÉVESQUE, J.C.Q. ______________________________________________________________________ C. W. Plaintiff c. RÉJEAN ARBOUR Defendant ______________________________________________________________________ JUdGMENT ______________________________________________________________________ 1.

Positions of the parties 1.1 Plaintiff’s position [ 1 ] Plaintiff is seeking compensation for damages she purportedly suffered during and following a liposuction and related tissue tightening procedure dispensed by defendant on January 31, 2018. [ 2 ] Plaintiff also claims that the information supplied by defendant about the risks related to the procedure was incomplete and not sufficiently explicit.

It did not dispel the effect of an overly optimistic description of the procedure and its consequences contained in marketing material supplied by defendant. [ 3 ] She contends that the grave infection that affected her in the days following the procedure could have been prevented or mitigated by a more thorough examination by defendant instead of what she perceives as a cursory follow-up visual examination performed on February 6, 2018. [ 4 ] This infection caused her to be hospitalized for a period of 10 days shortly after the procedure for a further operation.

She then had to repeatedly attend health care facilities for care and physiotherapy and lost days of work as a result. [ 5 ] She also believes that the operation lasted much longer than expected and that she was not forewarned of the pain and inconveniences that she might suffer as a consequence of it. 1.2 Defendant’s position [ 6 ] Defendant contests plaintiffs’ claims and complaints and insists that most of them are essentially subjective.

He stresses that plaintiff’s perception of the manner in which he would have contributed to her symptoms and suffering is not supported by medical expert testimony. [ 7 ] Although he recognizes that the pain that plaintiff suffered during the procedure was unusual, he states that this is not the result of any insufficiencies in the performance of his duty.

This situation was corrected and contained within the limits of acceptable standards. [ 8 ] Defendant states that the infection that plaintiff suffered is a rare and unfortunate occurrence, the risk of which was adequately divulged prior to her consenting to the operation. Both the duration of the procedure and the pain and discomfort to be expected during it and immediately thereafter were described to plaintiff. 2. Issues under dispute [ 9 ] The following issues must accordingly be addressed:

a) Has plaintiff demonstrated, by an objective and sufficient proof, that defendant by virtue of a failure in the performance of his medical duty caused her the damages stated in her claim?

b) Has defendant obtained a valid consent from plaintiff prior to initiating the operation under dispute ?

c) Has he obtained a continued valid consent from defendant as the situation evolved and prior to initiating some changes to the method used in the procedure and in the scope of it? 3. Context 3.1 Plaintiff’s objectives and concerns [ 10 ] Plaintiff consulted defendant to address her concerns about the appearance of the upper portion of her legs. [ 11 ] Plaintiff had some experience of cosmetic surgery and its constraints having completed an abdominoplasty in 2007 to have excess skin and fat from her middle and lower abdomen surgically removed and to tighten the muscles of her abdominal wall.

This operation was performed under complete anaesthesia and required a six-week convalescence. [ 12 ] Her professional situation in 2017 and 2018 did not allow such a lengthy period of absence and, although satisfied with the result then obtained, she wished to avoid a similarly invasive and temporarily debilitating procedure. [ 13 ] Plaintiff describes her initial consultation with defendant on November 27 , 2017, as follows. [ 14 ] Defendant examined plaintiff’s legs, determined and described to her the procedure he recommended as involving three steps, the first and by far most important being the surgery itself.

It would be followed by two sessions of treatments to tighten her skin by the use of some non-surgical tool at a later date. [ 15 ] The treatment determined by defendant is summarized by his expert as follows: Le plan de traitement est liposuccion cuisses internes inférieures, genoux internes et supérieurs et cuisse latérale droite avec BodyTite aux cuisses internes inférieures bilatérales, genoux internes et supérieurs et cuisse latérale droite.

Il prévoit 2 heures 30 minutes de temps opératoire sous anesthésie locale [1] . [ 16 ] Plaintiff expressed concerns about the possibility of pain and was reassured that although the operation was to be performed under local anaesthesia she would be medicated so that she would feel no pain during the procedure.

She does not remember any indication that pain should be expected or may be experienced after the operation. [ 17 ] As she understood it, the operation involved the use of heat to liquify fatty tissue which would be removed by suction. [ 18 ] Her conclusion, from the consultation, was that the inactivity period following the procedure was to be short and that the process would involve minimal adverse consequences or inconveniences and would give her the expected result. [ 19 ] Beyond the content of the brochure, discussed in detail hereafter, all the information that she relied upon to agree to the procedure were provided directly by defendant verbally and from an information form given to her. [ 20 ] Defendant had confirmed that the operation could be performed in ample time to ensure that it would not affect plaintiff’s marriage project for May 2018. [ 21 ] She also relied on information stated in defendant website affirming that the procedure allowed for a return to work within days from it which defendant confirmed and repeated at the meeting. [ 22 ] As she was leaving, she expressed to defendant her agreement to the procedure and signed the contract the next day agreeing to a price of $6,100 for the services described above [2] .

The operation was set for January 31, 2018. [ 23 ] A preparation meeting was held and some tests completed on January 16, 2018 mostly with defendant’s nurse and "inhalothérapeute". Defendant states that, aware or informed of plaintiff’s nervousness at the approaching operation, he took the unusual step of spending unscheduled time with her to allay her fear. [ 24 ] The nature of his comments at that time is related in the most general terms at trial by defendant.

Plaintiff describes the meeting as short and unsubstantial but concedes that her recollection of its content is dim. 3.2 The operation [ 25 ] Her recollection of interaction with defendant and his staff on the day of the operation is also vague. [ 26 ] She states that she signed a document that she understood as a release form probably on the day of the operation and concedes that she did not study its content beyond a general perusal. [ 27 ] She continued to rely on the information provided to her verbally especially as the document was drafted in French and that her understanding of the language is not optimal.

She did not request an English version of the document. [ 28 ] Plaintiff does not, however, ultimately challenge defendant’s statement that the draft consent forms are generally included in the information kit given at the time of the signing of the contract or at the preparation meeting.

[ 29 ] Although it contains statements of possible risks associated with both the operation and sedation and that some of those risks are dire and even fatal the document contains no explicit statement about the issue here raised by plaintiff beyond a general statement of the risk of infection. [ 30 ] The operation itself was performed on the day agreed. Sedation was initiated at 8:35 a.m.

The operation proceeded from 8:50 a.m. to 11:50 a.m. [3] for a duration of 180 minutes. [ 31 ] The most relevant portion of defendant’s notes drafted immediately after include the following: Patiente très sensible dès le début au point de cesser la procédure. Je ne pouvais faire l'anesthésie à la canule, car trop douloureux malgré l'augmentation de sédation. Patiente me supplie de continuer . On a décidé de faire l'anesthésie avec une aiguille spinale ce qui allonge de beaucoup le temps d'anesthésie locale. Tumescence adéquate, mais parfois sous-optimale lors du Bodytite. Pas de retouche sous locale.

Meilleure procédure effectuée dans des circonstances difficiles. Chirurgie laborieuse à cause de l'anxiété de la patiente et de sa très faible tolérance à la douleur. J'ai décidé de ne pas faire la cuisse latérale droite. 3.3 Post operation examination [ 32 ] A note dated February 1, 2018, reports the content of a follow-up telephone conversation and purports to indicate that although plaintiff reported blood emission she indicated that her pain was controlled by medication and confirmed that she was generally satisfied with the services.

The author of this note has not testified and the reliability of this information in contradicting plaintiff’s comment to the contrary cannot be assessed. [ 33 ] On February 6, 2018, defendant examines plaintiff and notes: Va bien douleurs contrôlées avec Tylenol... œdème et ecchymose modéré. Induration, bonne guérison point d'entrées.

Évolution normale - conseils et RV trois mois […] 3.4 Infection diagnostic and hospitaliZation [ 34 ] The expert summarizes the evolution of plaintiff’s condition in the next few days based on her medical file as follows: Une note médicale en date du 10 février 2018 par le Dr Lévesque, médecin de famille, qui note à

titre de raison de consultation : Cellulite post liposuccion. Il note induration, rougeur, chaleur (signe de phlébite), douleur en position assise, rougeur ++ cuisse droite, enflure ++, ecchymoses anormaux cuisses. Il note qu'elle a eu une liposuccion avec une technique de réchauffement de la peau et qu'elle avait repris le travail il y a 3 jours. Il note que l'intérieur de la cuisse droite est oedématié avec un érythème important et des ecchymoses multiples. Il note que la patiente aurait eu de la fièvre il y a 3 jours pendant quelques jours, qu'elle ne l'avait pas mesurée, mais qu'elle avait des frissons.

La température de la patiente était à 36.1. Son impression est une patiente de 52 ans qui suite à une procédure de liposuccion le 31 janvier dans un contexte de fièvre depuis quelques jours avec érythème, chaleur, douleur et induration sévère à l'intérieur de la cuisse droite avec œdème des membres inférieurs pire à droite et douleur avec difficulté à marcher, ecchymoses, hématomes multiples, vaisseaux sanguins apparents, il veut éliminer une thrombophlébite ou une cellulite abcédé au membre inférieur droit, il la réfère à l'urgence de Pierre-Boucher.

Une note médicale au dossier de l'urgentologue en date du 10 février 2018 note qu'elle ne fait pas de température. Une zone fluctuante avec rougeur étendue à la cuisse droite. Il soupçonne une cellulite de la cuisse droite avec abcès surajouté possible. Il prescrit des antibiotiques, hospitalise la patiente et demande un écho de surface pour le lendemain. Sur la feuille

sommaire de l'hôpital, on note qu'elle a été hospitalisée du 10 février 2018 au 19 février 2018 avec un diagnostic principal d'infection à la cuisse droite. On note qu'elle a eu un drainage d'abcès à la cuisse droite. Un protocole opératoire par le Dr Dalboni en date du 14 février 2018 décrit une chirurgie pour drainage d'abcès cuisse droite. Une mèche est installée dans la plaie. Les pansements seront changés tous les jours.

Une note de la clinique de physiothérapie en date du 4 juin 2018 indique que la plaie est fermée depuis un mois [4] . 3.5 Infection treatment and convalescence. [ 35 ] As a consequence of the operation plaintiff was hospitalized from February 10 to 19, 2018. She returned to work on February 25 . [ 36 ] She had to attend her somewhat distant CLSC every day from the February 20 to March 25 for the care and maintenance of her “mèche” type bandages and then three times a week until April 11. [ 37 ] Her movements were limited and she states that she felt substantial pain.

She had to live with an open wound in her thigh until days before her marriage. 4. Proof 4.1 Expert testimony in support of defendant’s position [ 38 ] Defendant offers the testimony of an expert in the field who concludes that no elements of the record denote any lapses by defendant in the execution of his duty or derogation from accepted medical standards.

[ 39 ] The pain suffered both during and after the procedure falls in his opinion at the higher end of an expected continuum of possible consequences for a generally well-accepted treatment that may cause some patients to suffer more inconvenience than others. [ 40 ] This expert concludes that the information conveyed to plaintiff, as they are described by defendant constituted a reasonable description of the normal course and consequences of the procedure but also of the spectrum of risk resulting from it. 5.

Defendant alleged failure in the performance of medical duties 5.1 Role of the expertise [ 41 ] The diligence and competence of a surgeon cannot be determined on the basis of the results observed following a procedure and the impression offered by them to the layman. [ 42 ] Despite all the precautions taken by medical science, the work of the physician remains complex, empirical and uncertain . [ 43 ] When a doctor’s intervention does not give the desired result because the rules of the art come up against this incompressible margin of chance inherent in medical practice , it cannot generate responsibility for the doctor who has respected these rules and who therefore did not commit any fault [5] . [ 44 ] A tribunal must not conclude that a physician work was deficient on the sole appreciation of the result achieved on the basis of the perfect vision afforded by hindsight.

Account must be taken of the physician’s limited ability, in deciding what to do and what to say, to predict the future course of events [6] . [ 45 ] In the context of an action for professional liability, the plaintiff assumes the complex burden of identifying and demonstrating what behaviour the proper rules of medical practice dictate in a situation such as that under dispute.

This is a prerequisite to any demonstration that these rules were not honoured, which in turn is a condition for such a claim to be recognized. [ 46 ] In order to assess whether the defendant behaved according to the relevant standard of a reasonably prudent, diligent and competent physician, the Tribunal must compare the actions of the physician with the accepted rules of the art and the science involved [7] . [ 47 ] In the absence of expertise establishing that there has been a violation of a standard of conduct and derogation from the standard of the prudent and diligent doctor in such circumstances, it is extremely difficult if not impossible for the claimant to convince the Tribunal that professional misconduct and faulty execution of duty occurred [8] : If a judge can, in certain respects, draw on his personal knowledge of the rules of the art of the practice of law, having regard to his legal training, to assess the conduct of the practice of a lawyer or a notary, although this is not without limits, it cannot claim an equivalent knowledge of the specialized field of psychiatry [9] . [ 48 ] These universally recognized legal principles and the high risk of failure of the claim in the absence of expertise were reiterated to plaintiff at the beginning of the trial who then persisted not to attempt to avail herself of the possibility of seeking to redress this deficiency. [ 49 ] Her complaints about the quality of care must nonetheless be addressed individually. 5.2 Infection [ 50 ] Infection following this type of procedure is a rare occurrence according to the undisputed testimony of defendant’s expert. [ 51 ] There is no reason to doubt, on the basis of the proof offered that the required stringent aseptic surgical operating conditions were maintained or that medication to prevent the possibility of infection was advisable. [ 52 ] There is no allegation that any identifiable failure by defendant in the execution of duty either caused or contributed to the occurrence of the infection.

Plaintiff clarifies in her testimony that she makes no such claim. [ 53 ] Her complaint on this issue rather relates to the level of care in a follow-up examination. [ 54 ] Plaintiff claims essentially that signs of her infection were present when defendant examined her a few days after the procedure and that her description of her condition and pains suffered were not properly investigated. [ 55 ] According to defendant’s expert, however, infection would not have been present or at least clinically perceptible so soon after the procedure. [ 56 ] There is thus no evidence to contradict defendant’s statement that although the examination was brief it was sufficient to allow him to conclude that although plaintiff condition was not optimal at the time it remained within the limits of the range of normal reaction to the procedure and that no signs of infection were present. [ 57 ] The nature and stated duration and purpose of this post-procedure examination are also deemed consistent with appropriate practice by the uncontested testimony of defendant’s expert. [ 58 ] Plaintiff has not established the objective proof of defendant liability on this issue. [ 59 ] The risk of infection was mentioned in the documents given to her.

Plaintiff also recognizes that she was aware, upon agreeing

to the procedure, of some risk of infection that she knew is inherent in any surgical procedure. [ 60 ] In the absence of medical expertise in support of plaintiff’s contention that the method and care adopted at the time of the follow-up examination were not appropriate and given the credible information offered by defendant’s expert with relation to the delay where infection symptoms would have become apparent, plaintiff’s claim on this issue must be denied. 5.3 Duration of the operation. [ 61 ] Plaintiff testifies that she believes that defendant indicated that the procedure would last approximately one hour.

She acknowledges, however, upon further enquiry, that her recollection of this aspect of the conversation is rather vague. [ 62 ] She concedes that she is, in fact, unsure of the delay indicated beyond this general impression and that it is not beyond the realm of possibility that the duration indicated may indeed have been two hours or even more. [ 63 ] Defendant notes indicate an expected duration of 2.5 hours. He stresses that he must strictly adhere to a well-planned schedule.

He must plan the duration of any procedure as precisely as possible given the staff and resources involved in the management and activity of an operating room and the impact on the cost charged to patients. [ 64 ] If duration for the course of the procedure was provided and relied upon by plaintiff, there would be no reason or advantage for the defendant to misrepresent it. [ 65 ] In any case such discrepancy would only be significant if the duration was the result of a failure in the execution of defendant’s duty or if plaintiff contended that she would not have agreed to the operation if its duration had been such as it was.

This contention is not expressed or implicit in plaintiff claims and no such demonstration is made. [ 66 ] Plaintiff complaints concerning misrepresentation on the expected duration of the procedure are not substantiated. 5.4 Pain during the operation [ 67 ] There is again no proof or contention that the high level of pain experienced by plaintiff at least in some portion of the execution of the procedure is the result of any deficiencies in defendant execution of his duty. 6.

Information and consent 6.1 General duty to obtain informed consent [ 68 ] A physician must honour four main categories of obligation toward his patient . He must obtain a free and informed consent to the proposed course of treatment which entails an obligation to provide adequate information.

He must also form and deliver a correct diagnosis of the patient’s condition, prescribe and administer appropriate treatment and finally, honour professional secrecy [10] . [ 69 ] One of his principal duties is thus to deliver to the patient all the information that a reasonably prudent and diligent physician would have provided in similar circumstances including sufficiently precise information about the exact nature of the intervention, and the aim pursued by it.

The risks and side effects must be clearly explained to the patient, as must be the expected benefits [11] . [ 70 ] The patient must be informed of the various options available to her in relation to her condition, as well as the consequences generally associated with each of the options [12] .

The aim is to allow the patient to make an informed decision and to accept or refuse, in full knowledge of the facts, the treatment plan recommended. 6.2 Duty to inform in the context of elective surgery [ 71 ] A more rigorous information process and the conveying of specific information is required when elective and non-therapeutic surgery are contemplated than that required for procedures deemed necessary or urgent [13] . [ 72 ] The risks associated with an elective operation must be described and weighed as precisely as possible [14] : "Cosmetic surgery, the sole purpose of which is to improve beauty and appearance, is more a medicine of convenience than medicine of necessity.

The decision is more subjective and personal than therapeutic. It is essential that the patient undergoing it is very well informed. In this matter, the disclosure extends beyond that required for curative care. The information will cover not only foreseeable and probable risks, but also “possible and rare”, “extremely rare”, “all material risks and any special risk as well as the consequences for the patient”, on all risks, vagaries of adventure without reservation .

However, it does not include risks inherent in the procedure "which everyone may know, nor negligible risks which do not entail any serious consequences and, of course, unforeseeable risks for the surgeon [15] . 6.3 Verbal and written Risk disclosure. [ 73 ] Both parties acknowledge that their recollection of the events surrounding disclosure of risks is imperfect. [ 74 ] Defendant recognizes that his description of the information conveyed to plaintiff prior to the operation is, in some part, reconstructed from the notes contained in his file. [ 75 ] He also states that he must necessarily have followed the strict routine that he has established in such circumstances.

He admits that his description of the information given to plaintiff must be understood as a description of the information he conveys to all patients

in similar circumstances contemplating analogous procedures. [ 76 ] This understandable imprecision of his recollection of an oft-repeated risk description process may be compensated by referring to the well-established practice of the professional: [50] La jurisprudence reconnaît que la pratique généralement suivie par un médecin est admissible en preuve et peut compenser l’absence de souvenirs précis.

Par ailleurs, les notes se trouvant au dossier médical d’une personne font preuve prima facie des données et des faits qui y sont consignés [16] . [ 77 ] Defendant states that as the November 27, 2017 meeting progressed he used a checklist to ensure that he communicated to plaintiff information concerning possible consequences of the surgery. He ticked the boxes adjacent to each of 11 risk factors and concludes that he must have discussed these various issues. Plaintiff and defendant both signed this list [17] .

Risk of infection is mentioned in the list but the possibility of intense pain is not. [ 78 ] Beyond this somewhat cursory list defendant does not describe the actual data offered nor any particulars as to the concrete weighing of the various risk factors with plaintiff. [ 79 ] The general tone and content of the information provided and his philosophy in this matter can, however, be understood from his testimony at trial: La façon dont je présente les choses c’est que, en effet, pour la majorité des patientes une liposuccion c’est une procédure qui se fait bien avec peu d’inconfort et qui demande une récupération qui est courte comparée par exemple à une procédure de tummy tuck ou de redrapage du ventre où il y a une coupure extensive, resserrement des muscles en difficulté à se lever du lit pendant plusieurs jours, plusieurs semaines.

Donc ce sont des chirurgies qui sont différentes. Donc j’essaie de présenter pour la moyenne des gens quel genre de récupération ils ont. C’est ce que j’ai fait avec la demanderesse. Je n’ai pas essayé de banaliser, je ne banalise aucune procédure. […] J’essaie de donner les choses telles qu’elles sont mais je ne veux pas non plus amplifier pour quelques personnes qui trouvent cela trop difficile, amplifier les choses pour faire peur à une majorité de personnes .

Donc j’essaie de trouver une moyenne sur mon expérience et l’expérience de mon équipe de toutes les patientes qu’on voit semaine après semaine… on recueille les informations des gens pour savoir quoi dire aux gens. Par rapport à la douleur on réfère que pour la plupart des gens après quelques jours à une semaine ça va ressembler plus à une douleur musculaire qui va ressembler à si on s’est entraîné fort. C’est souvent l’analogie qu’on fait au niveau de la liposuccion. Pour la plupart des gens, ça représente comment ils se sentent.

Quand ils viennent nous voir au premier suivi ils des bleus, ils ont de l’enflure, ils sont raides, ils ne feraient pas du yoga pendant deux heures à s’étirer et tout cela. Il y a une certaine raideur, un certain inconfort mais les gens ont une douleur qui est très raisonnable à 5, 6 ou 7 jours de la procédure qui fait en sorte qu’habituellement on peut aller faire un travail de bureau, on peut marcher, on peut monter des escaliers, on peut vaquer à nos occupations quotidiennes.

Donc c’est ce qui a été présenté à la demanderesse lorsque j’ai fait la consultation. [ 80 ] There is in this description no statement about rare risks. The situation of patients who experience a more difficult process does not appear to be substantially mentioned.

The rate of dissatisfaction or adverse outcomes or reaction to the procedure as established in scientific literature is not stated. [ 81 ] The statement indicating that defendant « ne veux pas non plus, pour quelques personnes qui trouvent cela trop difficile, amplifier les choses pour faire peur à une majorité de personnes » sums up his approach in the matter. [ 82 ] The information provided is at best a description of an average of outcomes.

It necessarily, as defendant describes it, glosses over the experience of the few patients who experience a more difficult process while some information about such situations is relevant to any rational decision and required by law in the context of elective surgery. [ 83 ] This philosophy does not appear to be in line with the stringent demands requiring that “ the information will cover not only foreseeable and probable risks, but also “possible and rare”, “extremely rare” and all material risks and any special risk as well as the consequences for the patient” of all risks without reservation. [ 84 ] A study provided by defendant's expert gives some measure of the reality of the procedure: The overall incidence of major complications was 6.25% and the incidence of minor complications was 8.3%.

Overall patient satisfaction was 82% for the degree of skin tightening and 85% for the body-contouring result with the BodyTitirm device. Three independent plastic surgeons graded the improvement in body contour as good to excellent in 74.5% of patients and the improvement in skin tightening as good to excellent in 58.5% of patients [18] . [ 85 ] The study also state that 15% of patients were not satisfied with the body-contouring result six months after the procedure and 18% of patients were not satisfied with the outcome of the skin tightening process.

As indicated, consulted surgeons themselves concluded that the improvement of contour is not at least “good” in more than 25% of case and that more than 40% of skin tightening results do not reach this level of acceptability. 6.4 The role of advertising in patient’s risk assessment [ 86 ] While waiting for her meeting with defendant plaintiff reads a brochure there offered bearing the title “BodyTite par Inmode” [19] .

[ 87 ] Her interest for the procedure described is aroused upon reading the following statements contained in this brief document: BodyTite est une solution formidable pour les personnes cherchant à perdre du gras sans la peau ridée et affaissée. Il aide également à améliorer le relâchement cutané après la perte de poids ou causé par le vieillissement. BodyTite est une intervention invasive de façon minimale qui modèle, contracte et lifte sans scalpel ni cicatrice. Vous obtiendrez des résultats comme après une opération sans la période d'inactivité qui s'ensuit.

BodyTite utilise la technologie LARF (lipolyse assistée par radiofréquence) qui règle certaines des lacunes associées à la liposuccion traditionnelle ou au redrapage chirurgical du corps. Quelles régions peuvent être traitées ? Si vous pouvez l'imaginer, vous pouvez le faire: ventre, bras, poitrine, genoux ainsi que l'extérieur ou l'intérieur des cuisses sont certaines des régions de traitement les plus fréquentes. De multiples régions peuvent être traitées en une seule visite. Environ 15 minutes de traitement seront requises pour chaque zone. Quelle est la période d'inactivité ?

Selon la région de traitement, la période d'inactivité peut être de 1 jour ou 2, jusqu'à 10 jours. Une intervention invasive de façon minimale, sécuritaire, douce et efficace pour le remodelage corporel .

Renseignez-vous auprès de votre fournisseur de soins esthétiques pour voir si BodyTite vous convient. [ 88 ] Plaintiff felt that the procedure, as described, addressed many of her objectives and concerns. [ 89 ] Seeing that she was reading this document defendant invited her to bring it with her in the consultation room so that its content be discussed between them. [ 90 ] There is no evidence that defendant expressed reservations or otherwise distanced himself from the statements contained in the brochure and defendant does not say so. [ 91 ] In Collette c.

Dupuy [20] , the honourable Chantal Sirois, J.C.Q. concluded that a description of the risks of liposuction contained in a brochure provided to a patient unduly reassured her and vitiated her consent to the operation and concluded that the physician failed in its duty to provide information by not sufficiently explaining how uncertain the results of the liposuction procedure were. [ 92 ] The description provided in the advertising material has created a lasting impression for defendant that has not been dispelled by a more sober assessment.

A description of some of the harsher reality, difficulties and limits of the procedure was warranted under the stringent requirement in matters of elective surgery. [ 93 ] The proof does indicate that the procedure is generally well received and often yields a positive outcome.

This is, however, not always the case in accordance with material introduced by defendant and his expert at trial. 6.5 Risks outlined in document signed by plaintifF [ 94 ] Defendant stresses, however, that generally a detailed risk assessment form related to both the surgery and to the anaesthesia is included in the information kit given to patients. [ 95 ] It contains some dire warning about possible outcomes and incidents of the procedure: Il existe des risques/complications liés à cette intervention, tels les suivants : Si une quantité trop faible ou trop importante de graisse est retirée, le contour des régions traitées pourrait présenter des défauts, comme des ondulations ou des irrégularités.

Ce phénomène est plus marqué chez les personnes de plus de 35 ans et/ou qui ont un surplus de poids, une deuxième opération est alors parfois nécessaire: Engourdissement temporaire, disparaissant en général en quelques mois; Ecchymoses, lesquelles se caractérisent par une décoloration de la peau, la présence de zones bleues et noires et une irrégularité des tissus cutanés. Ce phénomène peut durer jusqu'à quatre semaines, et un peu plus longtemps selon les cas. Il arrive que des petits bourrelets prennent plus de temps à disparaître mais des massages peuvent contribuer à améliorer cette situation.

Infection; Accumulation de sang ou de liquide aqueux (sérum) dans la région traitée.

Cette complication est à l'origine des pires résultats sur le plan cosmétique et peut retarder la cicatrisation: Perte de peau, dans de cas très rare; Enflure en cas de traitement au niveau des genoux, de l'intérieur des cuisses et, en particulier des chevilles, pouvant durer jusqu'à quatre semaines; Excès de peau à la suite de l'intervention, en particulier dans la région du bas ventre, pouvant nécessiter une opération chirurgicale visant à obtenir un résultat cosmétique satisfaisant; Les fumeurs présentent un risque accru d'infection, de plaie, d'infection pulmonaire, de complications cardiaques ou pulmonaires et de thrombose:

Les personnes obèses présentent un risque accru d'infection de la plaie, infection pulmonaire, de complications cardiaques ou pulmonaires et de thrombose.

Une hémorragie (1% des cas) Le remodelage de la peau peut prendre jusqu'à douze mois. [ 96 ] In addition, defendant states that given his perception of considerable nervousness and apprehension in plaintiff’s mind he took more time than usual to explain the procedure and it consequences, both on November 27 th and at the pre-operation presence of plaintiff at the clinic on January 16, 2018. [ 97 ] These statements and the probability of the occurrence of the events described must, however, be weighed against the general impression arising from the directed and presumably personalized assessment and risk description provided by defendant. [ 98 ] The nature of the information on those two occasions is not, however, described.

The manner in which the risk outlined in the risk information form were compared and measured against the rosy description in the pamphlet is unknown. [ 99 ] It can be assumed that on those occasions defendant acted consistently with his philosophy of describing the perception and outcome of the average patient in such a manner as to avoid unduly alarming plaintiff. [ 100 ] If, indeed, plaintiff realized that the form existed only as she states on the day of the operation defendant acknowledges that the stress surrounding the imminent procedure would not have given her appropriate conditions to appreciate its content. [ 101 ] Although the general practice of defendant is that a member of his staff delivers the risk outline documents at the time of signing the contract, it remains uncertain that it was given prior to the operation day. [ 102 ] There is also no indication that defendant or members of his staff have verified that plaintiff had studied the form prior to the operation or that her understanding of its content was adequate. [ 103 ] This document, its content and plaintiff behaviour must be appreciated overall.

The global effect on plaintiff decision of the document itself, the advertising material and the information directly provided by defendant must be considered. [ 104 ] Plaintiff past positive appreciation of a much more invasive surgery and its generally satisfactory results may have coloured her perception. [ 105 ] The importance of defendant direct information is also significant as both parties testify that plaintiff granted defendant a very high level of trust. [ 106 ] The risk of pain as intense as those suffered by plaintiff during at least some part of the operation does not appear to have been discussed with her prior to the procedure.

It does not appear in the check list nor in the consent form.

A consent form related to sedation indicates, however, that this process may not be fully effective or may fail altogether and that the sedation method may need to be changed in the course of the procedure. 6.6 Expert limited role in assessing quality of information [ 107 ] Defendant’s expert states that the information to plaintiff is appropriate with relation to professional standards and practice. [ 108 ] Although this conformity to the standards of the careful physician is a relevant factor, it is not the only issue to be considered. [ 109 ] First the quality and nature of the information to be provided must be appreciated on a case-by-case basis in accordance with the circumstances established in proof: En résumé, la jurisprudence indique qu’en obtenant le consentement d’un patient à une opération chirurgicale sur sa personne, un chirurgien doit, généralement, répondre aux questions précises que lui pose le patient sur les risques courus et doit, sans qu’on le questionne, lui divulguer la nature de l’opération envisagée, sa gravité, tous risques importants et tous risques particuliers ou inhabituels que présente cette opération.

Cependant, ceci dit, il faut ajouter que l’étendue du devoir de divulguer et la question de savoir s’il y a eu manquement sont des questions qu’il faut décider en tenant compte des circonstances de chaque cas particulier [21] . [ 110 ] Secondly, the appreciation of the quality, sufficiency and relevance of the information, although informed by the opinion of the expert is ultimately, a matter strictly within the purview of the Tribunal. [ 111 ] The Supreme Court clearly delineates the limit of the role of the expert.

It stresses that it is for the Tribunal to determine whether the patient could form a valid consent on the basis of the information provided: Quant à la norme de divulgation des risques, ce serait allé trop loin de dire qu’«il est préférable de laisser à la discrétion du médecin la façon d’expliquer à un patient donné la nature et le degré de risque que comporte l’intervention».

Permettre que les témoignages des médecins experts déterminent quels sont les risques importants et, donc, ceux à divulguer et quels risques ne sont pas importants équivaut à confier à la profession médicale toute la question de la portée du devoir de divulguer, y compris celle de savoir s’il y eut manquement à ce devoir. Bien sûr, les témoignages des médecins experts sont pertinents aux conclusions sur les risques inhérents à l’opération ou autre traitement envisagé, ou qui en résultent.

Mettre à l’épreuve des experts médicaux la divulgation des risques n’est pas concluant parce que le patient peut avoir exprimé des inquiétudes au médecin et ce dernier est tenu d’y répondre de façon raisonnable. Le devoir de divulgation du médecin s’applique aussi bien à ce qu’il sait ou devrait savoir qu’un certain patient considère pertinent à la décision de subir ou non le traitement prescrit, qu’aux risques importants que les connaissances médicales requises permettent d’identifier.

L’importance de la non-divulgation de certains risques sur le consentement éclairé est une question qui relève de l’arbitre des faits,

question sur laquelle il y aura probablement des témoignages de médecins mais également d’autres témoignages, dont celui du patient ou de membres de sa famille [22] . 6.7 Reaction to information [ 112 ] One of plaintiff’s main concern about the operation was that its occurrence remain strictly confidential. She repeatedly indicates that she feared being the subject of the stigma that she believes is directed toward women who resort to cosmetic surgery.

A sincere shame at her participation in this process seems to colour all decision that she adopts on this issue. [ 113 ] She insists that the essential condition of her accepting the procedure was based on the assurance that its occurrence would be imperceptible in her professional life. [ 114 ] It was essential for her that it did not consequently generate any absence from her workplace in a very busy period which would have been conspicuous to her colleagues and require uncomfortable disclosure. [ 115 ] There is concrete reason to conclude that a more proper divulgation of both the risks attached to the procedure and the very real uncertainty of its outcome would have, in all likelihood led her to a different decision. [ 116 ] The balance of risk that this objective would not be met and a sober assessment of the uncertainty of the result would most probably have led her to decline. [ 117 ] The importance of this factor is, however, mitigated by events at the time of the operation.

The existence and integrity of her consent in light of changes to the procedure in the course of its execution is more relevant to the outcome of the claim. 7. consent to changes in the procedure [ 118 ] All parties recognize that plaintiff suffered intense pains at the onset of the operation that were not alleviated notwithstanding an unusual increase of intravenous sedation . [ 119 ] Defendant alleges that plaintiff apparent pain was so intense that he offered to cancel the procedure and reimburse its cost.

He states that he was only persuaded to continue by plaintiff’s intense exhortations. [ 120 ] Continuing the procedure involved a substantial change in the tool and method used to provide local anaesthesia in the body area involved in the procedure.

A device much smaller than usual had to be used for this purpose therefore substantially exceeding the time allotted for the anaesthesia phase of the operation. [ 121 ] As a result, the area treated and the extent of the operation was reduced and some aspects of the treatment previously determined as appropriate by defendant and agreed with plaintiff were not treated. [ 122 ] The quality of the result was also suboptimal as defendant indicates he could only provide the best operation allowed under these difficult circumstances or “meilleure procédure effectuée dans des circonstances difficiles” . [ 123 ] Defendant implies that he also changed his usual method and had to forgo the usual steps of having the patient turn to expose the area to be treated.

Once a “level of comfort was achieved,” defendant did not dare further move the patient. Voluntary movement were precluded by an unusually potent dosage of sedation. [ 124 ] The constraint imposed by plaintiff’s intense pain at the onset of the operation introduced a new set of variables and uncertainties. [ 125 ] The process was very substantially slowed and the duration of the procedure increased. Defendant, however, could not go beyond a certain duration as other procedures were scheduled.

The duration of sedation and the period under which plaintiff could be operated on was not unlimited. [ 126 ] As a consequence, without having the possibility of discussing it with plaintiff defendant was introducing an additional risk that the operation, as contemplated, could not be completed. [ 127 ] Plaintiff adverse reaction to the sedation rendered a complementary operation improbable. She had already expressed a great reluctance to any complete anaesthesia.

As a result, plaintiff risked not receiving the full treatment recommended and deemed appropriate by defendant. [ 128 ] The possible consequences of the great constraints on the movement of the patient during the operation that are normally required by the surgeon to more directly access the treated area could also not be assessed and discussed with plaintiff. [ 129 ] Ultimately defendant contends that plaintiff should be satisfied with an operation that is substantially different from the one agreed. [ 130 ] Defendant, in his own notes, describes the outcome as “the best available operation in consideration of difficult circumstances.” Defendant himself by this description of the outcome implicitly acknowledges that at least in some aspects the result obtained or to be expected was less than optimal and different as a consequence. [ 131 ] However, in the absence of an expertise comparing the result as it could reasonably be expected and measuring the consequence of the change in the procedure decided by defendant it is not possible to precisely assess the consequence of any aspect of this decision.

[ 132 ] It remains, however, that the plaintiff was not placed in a position to provide an informed consent to the risk and consequence of continuing with the procedure. [ 133 ] Defendant proposes that he continued with the procedure nonetheless on the basis of her insistence.

She was then, however, as he concedes, under heavy sedation. [ 134 ] Defendant confirms that significant dose of potent drugs had already been injected when the decision to continue was purportedly confirmed. [ 135 ] One of the purposes of these drugs is precisely to numb plaintiff’s perception of the stresses and discomfort associated with the procedure.

Her ability to assess reality and to make an informed difficult decision was necessarily lessened. [ 136 ] The communication about this between defendant and plaintiff were, in addition, constrained and limited by the physical obstacles installed to ensure asepsis in the operating field. [ 137 ] The exchange as described by defendant is limited to defendant offer to terminate the procedure and reimburse and plaintiff answer. [ 138 ] Defendant ultimately conceded in his testimony that he cannot honestly contend that plaintiff provided an informed and valid consent under these conditions. [ 139 ] The jurisprudence agrees with this assessment: 236.

Dans l'arrêt classique Beausoleil c. Communauté des Sœurs de la Charité, la majorité de la Cour d'appel a décidé que l'acceptation de dernière minute, par la patiente ayant déjà reçu sa sédation préopératoire, d'une anesthésie rachidienne au lieu d'une anesthésie générale tel que convenu auparavant, et ce, par suite de l'insistance de l'anesthésiste en chef de l'hôpital, n'était pas valable [23] . [ 140 ] Whether or not plaintiff validly consented to the operation as initially construed she could not in her condition agree to the operation as modified to accommodate the reality of its execution.

There is no contention that the continuation of this elective procedure had somehow become urgent or that any pressing medical need determined the decision to persevere under those changed conditions. [ 141 ] In light of these circumstances, the most probable conclusion is that defendant performed an operation under substantially new constraints and limitation that were not validly accepted by plaintiff: Le consentement ne couvre que la procédure à laquelle le patient a acquiescé et ne constitue en rien un chèque en blanc pour tout ce que le clinicien estime souhaitable, même pour le bien du patient [24] [ 142 ] This unfortunate circumstance may very well have been based on defendant honest desire to satisfy plaintiff’s hopes and desires and honour the confidence that she placed in him.

It might very well have been based on a proper assessment of the risk involved. [ 143 ] This assessment and this decision, however, needed to be submitted for approval by an informed and capable patient and were not. [ 144 ] In the absence of valid consent, the operation must be legally treated as affecting the bodily integrity of plaintiff without proper consent. 8. Consequences and damages [ 145 ] The first consequence of this set of circumstances is that the parties should revert to the solution considered by defendant when the problem arose in the course of the operation.

The cost of the procedure must be reimbursed as plaintiff did not validly agree to the course of treatment as modified. [ 146 ] This is also justified given the fact that defendant would not or could not provide the additional steps in the process agreed and provide the final nonsurgical treatments. [ 147 ] Plaintiff bodily integrity is affected by a procedure that is incomplete as compared to the process initially recommended by defendant. It cannot realistically be completed for the reason stated. The consequences of this are not known in the absence of expertise.

It must be noted, however, that plaintiff states in her testimony that she only realized that the operation was not complete upon reviewing the clinical note provided as exhibit in the context of this litigation. [ 148 ] Plaintiff was also subjected to a long period of intense sedation during a three-hour procedure not duly authorized. Defendant acknowledges that even with sedation and change in the method he observed that plaintiff suffered discomfort and pain.

Some episodes of pain were evident especially at the end of the operation as sedation was progressively reduced. [ 149 ] Plaintiff also relates the dramatic aspect of the operating room upon emerging from sedation. Both defendant and his expert acknowledge that the amount of blood tinted liquid in the operating room at the end of such a procedure is a shock for many patients. [ 150 ] The emission of dramatic quantity from their body of liquid that they also agree is perceived by the patient as blood is also very troubling for many patients.

Plaintiff would not have been subjected to this stress had the operation been terminated in its first stages. Quite soon after the beginning of the operation defendant could conclude that plaintiff reaction to sedation and pain was not typical. [ 151 ] These damages must be distinguished from the consequence of the grave infection that may have arisen whether the operation was complete or not and for which plaintiff has not demonstrated defendant liability.

[ 152 ] In such circumstances the assessment of the compensation required must be determined by the exercise of judicial discretion. In light of all relevant factors and in consideration of the portion of risk accepted by plaintiff, an amount of $2,000 beyond reimbursement of the cost of the procedure of $6,100 is warranted. For these reason , this court : [ 153 ] condemns defendant Réjean Arbour to pay to plaintiff an amount $8,100 and interest at the legal rate with the additional indemnity determined by

section 1619 of the Code civil du Québec from July 5, 2018, date of the formal notice as well as legal cost to the amount of $205. __________________________________ DANIEL LÉVESQUE, J.C.Q.