2023 NBCA 5, 2023 NBCA 5

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 66-21-CA DR. LYNN GLAZIER-GOLDIE APPELLANT D re LYNN GLAZIER-GOLDIE APPELANTE - and - - et - LEONARD ALLEN ARSENEAULT RESPONDENT LEONARD ALLEN ARSENEAULT INTIMÉ Dr. Glazier-Goldie v. Arseneault, 2023 NBCA 5 D re Glazier-Goldie c.

Arseneault, 2023 NBCA 5 CORAM: The Honourable Justice Quigg The Honourable Justice Green The Honourable Justice Baird CORAM : l’honorable juge Quigg l’honorable juge Green l’honorable juge Baird Appeal from a decision of the Court of Queen’s Bench: May 14, 2021 Appel d’une décision de la Cour du Banc de la Reine : le 14 mai 2021 History of Case: Historique de la cause : Decision under appeal: [2021] N.B.J. No. 139 Décision frappée d’appel : [2021] A.N.-B. n o 139 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 10, 2022 Appel entendu : le 10 février 2022 Judgment rendered: January 26, 2023 Jugement rendu : le 26 janvier 2023

Reasons for judgment by: The Honourable Justice Green Motifs de jugement : l’honorable juge Green Concurred in by: The Honourable Justice Quigg The Honourable Justice Baird Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Baird Counsel at hearing: For the appellant: Timothy R. Bell and Ian Girard For the respondent: Kevin C. Toner Avocats à l’audience : Pour l’appelante : Timothy R. Bell et Ian Girard Pour l’intimé : Kevin C. Toner THE COURT The appeal is dismissed with costs of $3,500 payable by Dr. Glazier-Goldie.

LA COUR L’appel est rejeté avec dépens de 3 500 $ payables par la D re Glazier-Goldie. The judgment of the Court was delivered by GREEN, J.A. I. Introduction [ 1 ] Leonard Allen Arseneault was left with severe neurological deficits following a stroke he suffered on February 10, 2013. He was 47 years of age at the time and had been a chiropractic patient of Dr. Lynn Glazier-Goldie. Mr.

Arseneault initiated legal action against his chiropractor, alleging her liability in negligence for the stroke and the resulting damages. [ 2 ] Following a trial on the issue of liability, a judge of the Court of Queen’s Bench (as it then was) issued a decision on May 14, 2021 ( Arseneault v. Goldie , [2021] N.B.J. No. 139 (QL) ): Considering all the evidence, I conclude that, most probably, the last chiropractic treatment caused the dissection of the Plaintiff’s carotid artery. The problem worsened with time and produced a blood clot. That clot was dislodged when Mr.

Arseneault lifted the heavy log and the stroke ensued. The Plaintiff has therefore met his burden to show that, on a balance of probabilities, but for the last chiropractic procedure, he would not

have suffered his stroke. To say it differently, it is more likely than not that the Defendant caused the Plaintiff’s injury and is liable to him in negligence for the damages suffered. This matter must now proceed with the assessment of damages. Costs will then be assessed. [paras. 175-177] [ 3 ] Dr. Glazier-Goldie appeals seeking to have the decision overturned. I am unable to identify any error on the part of the trial judge warranting appellate intervention, and I would therefore dismiss the appeal. II. Background [ 4 ] After graduating from high school, Mr.

Arseneault studied at the New Brunswick Community College and went on to work in the sale and installation of electronics, including sound systems, satellite receivers, and security systems. [ 5 ] In 1994, Mr. Arseneault broke his collar bone in a dirt bike accident and was off work for almost two years as he did not heal properly. Approximately 18 months later, his doctors suggested surgery. After being apprised of the risks, including the possibility that the surgery would not be successful, and that he would be unable to work for a further extended period, Mr.

Arseneault chose not to have the procedure. [ 6 ] From childhood, Mr. Arseneault has suffered from headaches, and he has been prescribed medication for migraines since 2004. [ 7 ] In 2008, while climbing a ladder inside a small closet, Mr. Arseneault struck his head on a wooden beam. He reported having heard or felt a snap. Over the next few days Mr. Arseneault developed a severe headache and sought medical attention. An x-ray taken at the time showed no abnormality. He attended six chiropractic sessions with another chiropractor. At trial, Mr.

Arseneault testified he received massage therapy, acupuncture, and electronic stimulation, but no chiropractic manipulation, during those sessions. [ 8 ] In 2010, Mr. Arseneault suffered another injury when a platform he was walking on failed while he was carrying 40 to 60 pounds of equipment. The notes taken by his physician refer to pain in the high lumbar area, and state Mr. Arseneault had been experiencing lower back pain for over 15 years. Mr. Arseneault received weekly massage therapy for about one month, and thereafter on an as-needed basis. [ 9 ] In 2011, Mr.

Arseneault sustained an injury to his left shoulder after falling down a flight of stairs, following which he was seen at his local Emergency Room and, having been diagnosed with a dislocated shoulder, at an orthopedic clinic. Surgery was discussed, but after being informed of the associated risks, Mr. Arseneault chose other treatment options. He was off work for several months and received physiotherapy. During this time, he also fell on ice, and was again told he might have to consider surgery. [ 10 ] In February 2012, Mr. Arseneault fell off a chair and struck his head.

He reported the fall to his massage therapist and indicated he was experiencing pain in his neck. Reports from the massage therapist on various dates in 2012 chronicle ongoing neck pain. [ 11 ] On August 13, 2012, Mr. Arseneault met with Dr. Glazier-Goldie for an initial evaluation. Dr. Glazier-Goldie is a graduate of the Canadian Memorial Chiropractic College and a member of the New Brunswick Chiropractors’ Association. [ 12 ] The trial judge found that Dr. Glazier-Goldie’s physical examination of Mr.

Arseneault: […] noted a 25% loss in right cervical rotation and right lateral flexion with mild pain, a 50% loss in left rotation and left lateral flexion

with mild pain. The cervical extension was reduced by 25% with mild pain. Neurological tests were unremarkable. X-rays were taken, and the Plaintiff was scheduled for a follow-up appointment for the next day. That first session lasted approximately one hour. [para. 20] [ 13 ] Mr. Arseneault’s follow-up appointment was in fact delayed at his request due to his work schedule, and he next saw Dr. Glazier-Goldie on August 23, 2012. On that date, Dr. Glazier-Goldie explained her diagnosis and treatment plan, which was to include spinal manipulation, and she provided Mr. Arseneault with lifestyle recommendations.

The trial judge noted: Mr. Arseneault received the first treatment on that day and then other treatments at irregular intervals, mainly because of his unavailability. He felt the treatments helped him. These treatments included chiropractic manipulation, including a spinal manipulation technique, a high-velocity low-amplitude thrust specific to the area being treated. [para. 34] [ 14 ] The history of this case with respect to what transpired between Mr. Arseneault and Dr.

Glazier- Goldie concerning informed consent and a discussion of treatment options will be explained in the analysis conducted later in these reasons. [ 15 ] For the purposes of this appeal, the trial judge’s description of Mr. Arseneault’s visit to Dr. Glazer-Goldie on January 18, 2013, is of critical importance: On January 18, 2013, the Plaintiff received his 21st treatment from the Defendant. He testified that the Defendant tried to “snap” his neck to the right, but it did not snap. She performed the manipulation on the left side then returned to the right side, using a lot more force.

The neck “snapped” and made a loud noise, much louder than usual. He was startled and feared she had broken his neck, so he moved it very slowly. It seemed to be all right and did not hurt. The Defendant described her treatment of the neck on that day as such: she tilted the Plaintiff’s head, located the C2 vertebrae with the index, tilted the head to the right until she felt the joint, then performed a quick thrust. Although not in her notes, she does remember that the first thrust did not produce any cavitation, so a more forceful thrust had to be used.

She remembers the Plaintiff being startled at the louder noise than usual. She asked him if he was okay, and he answered “yes” while sitting up and rotating his head slowly. [paras. 35- 36] [ 16 ] Immediately following the chiropractic session described above, Mr. Arseneault saw his massage therapist. He then attempted to return to work but was unable to do so because of a very bad headache. Instead, he went home to lie down, and he cancelled social plans with neighbours that evening because of the “pounding” in his head. Efforts to return to work in the days that followed were unsuccessful.

The trial judge noted that Mr. Arseneault was never able to return to work. [ 17 ] The next date of significance was February 10, 2013. I return to the facts as set out by the trial judge: Mr. Arseneault testified that he planned to go snowmobiling on that day but did not feel well. He was expecting friends to show up with their snowmobiles. There was a log that blocked the snowmobile path. The Plaintiff tied it with a rope, dragged it with his truck, and brought it to the yard. He flipped it over the snowbank from the lighter end.

The evidence shows that the log weighed 90 pounds on its lighter end and 110 pounds on the other. The Plaintiff flipped the log a few times. His vision started to get blurred, and he experienced other signs of a stroke. His wife called an ambulance. The pain in his head got to a point where he started vomiting. The Plaintiff presented to the Emergency Department of the Miramichi Hospital just after 1:00 p.m. The attending physician was Dr. Slorach, his family physician.

The doctor noted that the Plaintiff was suffering from left-sided weakness and speech disturbance, and a one-to-two-day history of a severe headache that was initially attributed to recurrent migraine. The Plaintiff was responsive and could communicate but had reduced motor strength in the left arm and leg.

A stroke was diagnosed. A CT scan was performed immediately showing no apparent bleeding in the brain area, thus eliminating the possibility of a hemorrhagic stroke. After discussing the risks and benefits of thrombolytic therapy, Mr. Arseneault consented to this procedure, which was performed immediately, resulting in significant improvement. The Plaintiff was transferred to the Critical Care Unit. Dr. Slorach resumed his care of the Plaintiff on February 11, 2013. The Emergency Record contains a

section entitled “Patient History// Subjective Data,” where we can read: “ Patient complains of severe headache started last night. Had all day yesterday .” In the detailed chronological notes, we can see, at 13:10: “ Severe headache, vomiting and left side weakness, complained of flu-like symptoms for the past 3 days .” On cross-examination, Mr. Arseneault testified that he was confused when he arrived at the hospital (The Emergency records say: Awake but drowsy ) and that he must have meant three weeks and not three days. The triage record mentions the same: Bad headache since last night .

During cross-examination, Mr. Arseneault repeated that the headache was present since the last chiropractic treatment and had worsened the day before, and he thought it was a sinus infection. […] CT scans revealed findings consistent with acute infarction. His patient informed Dr. Slorach of recent chiropractic neck manipulations. The doctor requested a CT angiogram. The report indicates the reasons for the test as Recent large right MCA infarction. Sluggish flow in right ICA on carotid doppler. Rule out ICA dissection. Recent chiropractic neck manipulation .

The findings were consistent with an extensive dissection of the right internal carotid artery. Dr. Slorach’s notes for that day contain the following: CT scan: MCA thrombosis. Infarction: treated with TPA with good recovery left side. Pros: Non smoker, No FH pem. Vascular disease, no diabetes. Cons: excess weight, fatty liver, borderline blood pressure, fasting blood glucose . Weekend excess alcohol in past, Maxalt use recently. Chiropractic neck manipulations ++ : last 1/12 prior to onset. (w x 15 over recent months) .

An arterial dissection is the tearing of the inner lining of the artery that allows blood to enter between the layers of the artery wall. While the blood collecting between the artery wall layers stretches or expands the artery, it also compresses or narrows the passage at the artery centre. This results in partial or complete blockage of flow through the vessel.

A dissection can lead to stroke by either reducing the required blood flow to the brain or by the formation of clots within the dissected artery passage that break away and flow up to the brain and block smaller cerebral vessels. [paras. 41-47 and 52-53] III. Issues and Analysis [ 18 ] Dr. Glazier-Goldie alleges the trial judge erred in four respects: 1. Failing to consider an element of the test for informed consent; 2. Relying on reasonable treatment alternatives in the absence of evidence; 3. Authorizing Dr. Christie to testify as an expert and accepting his evidence; and 4.

Finding she breached her duty of disclosure, without making any determination on the scope or content of her duty to disclose. A. The test for informed consent [ 19 ] The state of the law in New Brunswick in cases of alleged medical malpractice was set out by

Richard J.A. (as he then was) in Lemay v. Peters, 2014 NBCA 59, [2014] N.B.J. No. 244 (QL). On the central question of informedconsent, Lemay states as follows: No one takes issue with the legal principles that govern a medical malpractice claim founded on the absence of informed consent. Thetrial judge applied the law as reformulated in Hopp v. Lepp, (CSC), [1980] 2 S.C.R. 192 and Reibl v. Hughes, (CSC), [1980] 2 S.C.R. 880, and which this Court has periodically had occasion to apply: Mason v. Forgie (1986), (NB CA), 73 N.B.R. (2d) 193, [1986] N.B.J. No. 104 (C.A.) (QL), leave to appeal dismissed [1987] S.C.C.A.

No.11; Kueper v. McMullin (1986), (NB CA), 73 N.B.R. (2d) 288, [1986] N.B.J. No. 89 (C.A.) (QL); Kitchen v.McMullen (1989), (NB CA), 100 N.B.R. (2d) 91, [1989] N.B.J. No. 815 (C.A.) (QL); Beshara v. Dysart (1998), (NB CA), 207 N.B.R. (2d) 14, [1998] N.B.J. No. 480 (C.A.) (QL); and Doiron v. Haché, 2005 NBCA 75, 290 N.B.R. (2d)79. In essence, to be successful, Ms.

Lemay had to prove on a balance of probabilities that: (1) an injury to the spinal accessory nerve wasa material, unusual or special risk of a biopsy in the posterior triangle of the neck, in the sense that a reasonable person in her positionwould have wanted to know the risk;

(2) Dr. Peters did not inform her of the risk; and, (3) a reasonable person in her position would nothave consented to the biopsy of that node had there been full disclosure of the risks. The answers to the first two questions are evidentlyfindings of fact. As for the third, the test has been called a modified objective test of causation – that is a “blend of objectivity andsubjectivity” – and, it too raises a question of fact: Beshara, at para. 16, and Doiron, at para. 94. While Hopp and Reibl and most cases that have followed speak of the duty to inform of material risks, Ms.

Lemay submits the duty alsoextends to reasonable alternatives. She points to Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals inCanada, 4th ed. (Toronto: Thomson Carswell, 2007) where it is stated: The language in both Reibl v. Hughes and Hopp v. Lepp is couched in terms of disclosure of risks. The doctor must inform the patient ofthose risks which a reasonable person in the patient’s position would want to know.

However, it is now well established that the duty ofdisclosure is not confined to risks, but extends to other material information which a reasonable patient would want to have. In particular,the patient must be informed of any available alternatives to the treatment being proposed, as well as the material risks associated withthose alternatives, if this is something which a reasonable person in the patient’s circumstances would want to know. The duty todisclose available alternatives is especially important where these are more conservative, and involve fewer risks, than the treatmentwhich is being proposed.

It is incumbent on the physician to disclose sufficient information to enable the patient to place the treatmentoptions in a proper perspective and to assess their comparative risks and benefits. [pp. 150-152] Support for those statements can be found in Zimmer v. Ringrose, [1981] A.J. No. 596 (C.A.) (QL), Van Dyke v. Grey Bruce RegionalHealth Centre, (ON CA), [2005] O.J. No. 2219 (C.A.) (QL), Haughian v. Paine, (SK CA), [1987]S.J. No. 240 (C.A.) (QL), Seney v. Crooks, 1998 ABCA 316, [1998] A.J. No. 1060 (QL) and Cory v. Bass, 2011 ABQB 360, [2011] A.J.No. 681 (QL). Dr.

Peters did not take issue with the extension of the duty from explaining the material risks to also disclosing availableoptions. This is understandable. The logic of requiring a physician to disclose not only material risks but also available alternatives isunassailable.

A patient cannot truly give informed consent if not aware that less risky procedures might yield the same or a better result.[paras. 32-34] [20] To receive informed consent from a patient, a medical practitioner must therefore ensure thepatient understands the nature, risks and benefits of the recommended procedure, and the availability of other treatments, before decidingon a course of treatment (see Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341, at para. 18). B. The decision of the trial judge on informed consent [21] After canvassing the evidence before him in detail, the trial judge concluded Dr.

Glazier-Goldiehad breached her duty to disclose and inform Mr. Arseneault: When ascertaining whether informed consent to treatment has been given, the Court must consider a two-part test: 1- Has there been a breach of the duty to disclose and inform the patient? 2- Would a reasonable person in the patient’s position have consented to treatment had he or she been apprised of the risks and allother information that ought to have been disclosed?

I find that the Defendant breached her duty to disclose and inform her patient for the following reasons. The form she used unduly minimized the risk. Paragraph b), dealing with the possibility of strokes starts with: There are reported cases of stroke associated with visits to medical doctors and chiropractors . Not only is that statement based on controversial studies, but it immediately “anchors” the reader to the suggestion that chiropractic treatment is not a higher risk of stroke than visiting one’s family physician. Having been given time to read the form, the Plaintiff was unsure if he wanted to sign it.

When the Defendant returned to see if he had questions, Mr. Arseneault did question her about the risk of stroke. The Defendant’s evidence is that she simply repeated paragraph b) of the form suggested by her insurer and then sat, waiting several minutes for the Plaintiff to make his decision. Medical practitioners are expected to have personal knowledge of the risks involved in the treatments they provide and should be able to explain the risks in clear terms when questioned about them. What the Defendant did cannot be considered reasonable steps.

The duty to disclose includes an obligation to disclose the various alternative treatments available to a patient, even though the doctor may not favour them. The Defendant did not do this. She could provide other types of treatment, which did not make use of a high- velocity low amplitude neck movement. These included drop techniques, Cox flexion distraction and use of the Activator. [paras. 148- 152] C. Issue one – failing to consider an element of the test for informed consent [ 22 ] In her written submission, Dr. Glazier-Goldie argues as follows: The Decision ignores Mr.

Arseneault [ ’s] subjective situation and focusses exclusively on the objective component of the test. Specifically:

a) He was “not the type of person to consent” – para. 156;

b) A reasonable person in his position, properly apprised of the risks and the availability of alternative treatment, would not have consented – para. 159; and

c) The Trial Judge finds that a reasonable person in the Plaintiff’s position would not have consented to treatment – para. 160. The Decision, however, contains no finding on what the plaintiff would have done if he had been advised differently. That finding is absent because Mr. Arseneault was neither asked what he would have done had he been properly advised, nor did he provide that evidence. [ 23 ] In support of her position, Dr. Glazier-Goldie cites the decision of the Court of Appeal for British Columbia in Warlow v. Sadeghi , 2021 BCCA 46 , [2021] B.C.J.

No. 165 (QL) : To meet the subjective part of the modified objective test, Ms. Warlow needed to testify that if the material risks or treatment alternatives had been adequately disclosed, she would not have consented to the surgery. There can be no finding on what she would have done if she is not asked what she would have done had she been properly advised[.] [para. 36] [ 24 ] I note the above quote says, “material risks or treatment alternatives” (emphasis added). In my respectful opinion, as will be seen shortly, this does not assist Dr. Glazier-Goldie’s argument. [ 25 ] The circumstances surrounding Mr.

Arseneault’s signing of the consent form were explored during his direct examination. Below, I set out the relevant excerpts from the transcript. While the quoted passages are somewhat lengthy, as I am rejecting Dr. Glazier-Goldie’s allegations of error, I believe it is important to show exactly why I have come to that conclusion. I begin with Mr. Arseneault’s direct testimony:

Q. Okay. So this is the Informed Consent to Chiropractic Treatment. Take a look at the bottom left of the document. Second line from the bottom, patient signature, is that your signature? A. Yes. Q. Okay. Do you remember signing this document? A. Yeah, yes. Q. Okay. Where were you when you signed it? A. In one of the exam rooms at her office. Q. And was Doctor Goldie with you when you read it? A. I – originally I read it out in the waiting room and then I questioned her about it and – Q. Okay. So – A. – she took me into a exam room to talk to me about it. Q. Okay.

I’ll take you – draw your attention to paragraph (b). It states “There are reported cases of stroke associated with visits to medical doctors and chiropractors. Research and scientific evidence does not establish a cause and effect relationship between chiropractic treatment and the occurrence of stroke; rather, recent studies indicate that patients may be consulting medical doctors and chiropractors when they are in–”, it says “there are” but I think it’s – they meant to say “–they are in early stages of a stroke. In essence, there is a stroke already in progress.

However, you are being informed of this reported association because a stroke may cause serious neurological impairment or even death. The possibility of such injuries occurring in association with upper cervical adjustment is extremely remote”. Did you read that before you signed it? A. Yes. Q. Did you discuss that paragraph – A. Yes, I – Q. – with Doctor Goldie? A. – yes, I questioned her about it. Q. What did you ask her?

A. Well, “why are you making me sign this if there’s no risk”. “Cause it – it’s saying that there’s no risk or extremely remote but – “so why do you want me to sign it if it’s that remote”. “It’s obvious there’s more than you’re telling me” – Q. Well – A. – but she convinced me that there was literally no risk whatsoever. Q. Do you recall what she said to you? A. It would only be in elderly people or people with artery diseases and other health issues, but not in my case, that it – that it was impossible to happen. Q. I’m sorry? I didn’t hear. A. It was impossible to happen. Q.

Was that the extent of your discussion? A. Well, maybe not exactly everything. Well she basically said that if – if I had a stroke I was going to have it anyways, it wouldn’t have been from this. She convinced me to sign it anyway. That was just a formality and – Q. So you signed the document […]. [Transcript of December 9, 2020, pp. 45-47] [ 26 ] On cross-examination, Mr. Arseneault testified as follows: Q. She said to you there are risks associated with chiropractic treatment but those risks are rare. A. Yes. Q. Right? And she also said the possibility of a stroke was rare. A. Oh, yes.

Oh, actually more than rare, it was impossible with me. Q. I’m going to suggest to you that she said the possibility of a stroke was rare. A. It was more than rare, it was impossible, I had the impression. Q. She did not use the words “impossible”. A. Well words [awfully] close to it.

Q. Rare or remotely. A. It – it would never happen to me, never. Q. Are you – A. I was – Q. – suggesting, Mr. Arseneault, that she said to you it would never happen to you? A. Yes. That only happens to older people and people with cardiovascular problems, not healthy people like me. Q. So she told you that there are risks but they are rare. You admitted that. A. Yeah, but – and not – not with me specifically. That was my understanding or impression or I wouldn’t have signed it. Q.

I’m going to suggest to you that you don’t recall whether she said that there are risks associated with chiropractic treatment but those risks were rare and that you don’t recall that she said the possibility of stroke was rare. A. But, like I say, it was not – it was – specifically it was not going to happen to me. It only happens to older people and people with – that were already having a stroke, for other reasons. […] Q. She gave you the time to read the form and gave you time to ask your questions. A. Yes, mm-hmm. Q. Right? And you had a discussion with her that lasted several minutes. A. Yes. Q. Right? A.

Yes, a few minutes, yes. Q. But in the end you signed the consent form, correct? A. Yeah, well she talked me into it, I didn’t sign it wanting to.

[…] Q. I’m going to suggest to you that Doctor Goldie will testify that she did not convince you of anything. A. Well she convinced me that it would not happen to me. It only happens to people with problems, and I didn’t have no problems in that field so I was – Q. So after you’ve had your discussion which lasted several minutes and you’ve signed the consent form. Are you with me so far? Right? A. Yes. Q. And you had – had time to question her before you signed it. You signed it voluntarily, right? A. Yes. Q. And that’s your signature on the document. A. Yes, but I didn’t like signing it, not one bit. Q.

And you signed it because it was the only way you could get treatment, right? A. Yes, basically. Q. And you wanted the treatment. A. I – Q. Correct? A. Yes. Well I wanted some relief with – Q. You wanted – A. – my issues. Q. – the treatment, you were there, you needed that care. Right?

A. Yes. Q. And you weren’t considering other options of care at the time, correct? A. I had already tried, there was no other options. Q. Right. Chiropractic care was your last resort, correct? A. It was my only option. I had already – Q. Your only – your only option left. A. Yes. [Transcript of December 9, 2020, pp. 165-170] [ 27 ] When Dr. Glazier-Goldie subsequently took the witness stand, she was afforded the opportunity to provide the court with her recollection of the discussion which took place between she and Mr. Arseneault. Specifically, this was Dr.

Glazier-Goldie’s opportunity to challenge the sworn testimony of Mr. Arseneault on the nature of their discussion about the risk of stroke. In my opinion, she did not do so: Q. So how was the informed consent presented to Mr. Arseneault? A. It’s on a – it’s – it’s on a clipboard on its own. The patient – I’ll ask the patient to have a seat, I’ll usually be sitting on a stool, and I’ll ask – I would have asked Mr. Arseneault to review the consent form. I would have explained first that there’s many benefits to chiropractic care, as we discussed, but there’s rare potential risks, “can you please review the form”.

And I handed him the form on a clipboard and in most cases I leave the room to allow the patient to review it on their own. In the past I have stayed in the room and when I’ve done that I feel the patients don’t really read it, they just skim through it really quickly and they don’t take it in, so I don’t know if they feel intimidated with me in the room with them, so after, you know, being in practice for so long I felt leaving the room was giving them time to review the form so I – I would have stepped out for ten – ten minutes, fifteen maybe. I came back and Mr.

Arseneault would have been sitting there still with the – the form in his hand and I asked him if he had any questions. Q. What did he say? A. He said “I do”. Q. And – A. He asked about chiropractic and stroke and what I can remember is I discussed paragraph (

b) and I reiterated para – paragraph (

b) to him. Q. Do you remember the conversation? A. I don’t remember exactly what I said to him. All I remember is reviewing paragraph (b). Q. And how did he respond?

A. He was reluctant. He was – he was very eager for treatment, he was very eager for help. He seemed almost desperate. He tried many other treatments, he was going to massage and he was only getting so much relief and he was seeking help. And however, he wasn’t comfortable, he – he wasn’t comfortable with the risk of stroke that was disclosed in the form in which I disclosed to him. And I waited, I let him express how he was feeling. I just waited until he signed it. Q. How long was that conversation? A.

It seemed like at least ten minutes, five to ten minutes. “Cause he – he – he was quite hesitant and, if I could say, hummed and hawed, I don’t – I don’t know how you would spell that but – Q. So – A. So I didn’t – I just sat there and waited until he – he signed the document. I’m – I can’t – I can’t pursue, I can’t treat the patient unless they consent to it so I wasn’t going to do anything further until he signed the form. Q. And how – how did that conversation end? A.

He said, “well, looks like I’m going to have to sign it so I can get the treatment”. [Transcript of December 14, 2020, pp. 667-670] [ 28 ] Later, on cross-examination, counsel for Mr. Arseneault took Dr. Glazier-Goldie specifically to the points Mr. Arseneault had raised about age and health status during his testimony: Q. Okay. But you don’t recall especially whether you spoke about his cholesterol and blood pressure, age, seasonality, gender, those item – those – those things that – A. I don’t recall. I don’t recall. Q. Okay. I think it was Mr.

Arseneault’s testimony that you talked about blood pressure and cholesterol and that type of thing. Could that be an – unlikely from your perspective? A. It’s a long time ago, I truly can’t. [Transcript of December 15, 2020, p. 730] [ 29 ] Contrary to what one may have concluded based on the questions posed by Dr. Glazier-Goldie’s counsel during cross-examination of Mr.

Arseneault, his statements under oath on the issue of risk of stroke remained largely unchallenged and uncontradicted. [ 30 ] What conclusions can be drawn from the evidence before the trial judge and, more to the point, what conclusions did the trial judge draw? 1. Mr. Arseneault was undeniably concerned about the risk of suffering a stroke should he agree to undergo chiropractic treatments, and questioned Dr. Glazier-Goldie on this point; 2. Mr. Arseneault understood from his discussion with Dr. Glazier-Goldie that he himself was not at risk of stroke based on his age and health;

3. Dr. Glazier-Goldie was given an opportunity on cross-examination to address this specific aspect of Mr. Arseneault’s testimony and was unable to do so; and 4. Significantly, Mr. Arseneault made it clear that had he known of the actual risk, he would not have signed the consent form. [ 31 ] Dr. Glazier-Goldie alleges the trial judge’s decision “ignores Mr. Arseneault[’s] subjective situation and focuses exclusively on the objective component of the test.” In her written submission, she goes on to contend that the decision “contains no finding on what [Mr.

Arseneault] would have done if he had been advised differently” because “[he] was neither asked what he would have done had he been properly advised, nor did he provide that evidence”. I disagree. Mr. Arseneault made it plain he would not have signed the consent form, and the trial judge came to the same conclusion. That is not to say Mr. Arseneault would not have agreed to some form of chiropractic treatment from Dr. Glazier-Goldie. Indeed, he testified that he considered chiropractic treatment his only remaining option. That leads to another of the key issues in this case: that is, whether Dr.

Glazier-Goldie failed to outline forms of treatment other than the manipulation she ultimately performed. D. Issue two – relying on reasonable treatment alternatives in the absence of evidence [ 32 ] Dr. Glazier-Goldie alleges the trial judge erred in concluding there were alternate treatment options available to Mr. Arseneault given the absence of evidence before the court to support this conclusion. I disagree. There was evidence of treatment options before the trial judge, and he was satisfied Dr. Glazier-Goldie had an obligation to present them to Mr. Arseneault: In Reibl v.

Hughes , the Supreme Court of Canada adopted a modified objective test. It is objective in the sense that the question must be decided based on what a reasonable person would do, but it does contain some subjective elements in requiring consideration of the particular circumstances of the Plaintiff. In Ardnt v. Smith the Supreme Court of Canada reaffirmed the principles set out in Reibl for assessing whether the reasonable patient would have consented to treatment.

The court cited paragraph 9 of Reibl where Justice Cory had stated that “special considerations” affecting the particular patient should be considered, as such as any specific questions asked of the physician by the patient ... The questions, by revealing the patient’s concern will provide indication of the patient’s state of mind, which can be relevant in considering and applying the modified objective test. As indicated above, I find that the “information which ought to be disclosed” includes the available alternative treatments. These included drop techniques, Cox flexion distraction and the Activator. Mr.

Arseneault had already, in the past, refused surgical treatment to his shoulder after having been informed of the risks. He was, therefore, not the type of person to consent to medical procedures without balancing the benefits and the risks. This was an elective treatment, and there was no emergency. Although the Plaintiff was in pain and felt that neck manipulation was the only remaining treatment available to him to get relief, he was still hesitant to consent to the procedure.

After reviewing the form provided to him by the Defendant, he did not sign it right away but waited for the Defendant’s return to question her about the risk of stroke. After hearing her response, he still hesitated for several minutes before finally deciding to sign the form. A reasonable person in his position, properly apprised of the risks of a stroke and the availability of alternative treatment, would not have consented to the neck manipulation.

Considering the evidence, I find that a reasonable person in the Plaintiff’s position would not have consented to the treatment, had this person been properly apprised of the risks and all other information that ought to be disclosed. [Emphasis in original; footnote omitted; paras. 153-160] [ 33 ] While under cross-examination, Dr. Glazier-Goldie was questioned on alternate treatment options, as evidenced below. First, she explained abbreviations which appear on the forms she used to record the treatment provided to

Mr. Arseneault: A. […] If you just look below that you’ll see a DT, a DIF,

an ACT and a Cox with an F/D, so this is the – the legend we use to report or record the technique, the chiropractic technique. So DT means Thompson drop which is an adjustment we use with our tables. Diversified, which is the DIF which is what Mr. Arseneault received, he received a diversified adjustment to his neck. ACT is activator which is – it’s an instrument, it’s a spring-loaded instrument that we off – we can use on the spine.

And also Cox flexion distraction which is the form of traction I use in my office. […]. [Transcript of December 14, 2020, pp. 721-723] [ 34 ] Later in the cross-examination, counsel for Mr. Arseneault returned to these various treatments and questioned Dr. Glazier-Goldie on each: Q. Let’s – we’ll stay with August 23 rd , 2012, and we’re still in the cervical area and you’ve explained your – your – how you make your notes there. Just below that we see DT DIF ACT Cox F/D. A. Correct. Q. Okay. What is the DT? A.

Drop Thomps – it’s a technique which is a chiropractic technique where our – our tables have platforms, they’re in pieces – Q. Yes. A. – and there’s a cervical drop, there is a thoracic drop and a pelvic drop and a lumbar drop, so there’s – within the flat table there’s four platforms and there’s a pedal or a hand lever that we engage that lifts the table up, probably about two inches, and – Q. The – the entire table of just a part of it? A. No, just a part. So, if I’m adjusting the lower back I engage the pedal or the lever and just a portion, it’d be similar to the size of that seat cushion – […] A. Correct.

It’s similar to a massage table where the massage table, they don’t have drop technique technology on their tables where chiropractors do, so where that massage headpiece is fixed with massage therapy ours – ours would lift up, become engaged – Q. Yes. A. – and then for a drop technique on the cervical spine the patient’s head would be downward and tilted to the right but they would be face down and then I would push into the joint, deliver the thrust but then the table would engage at the same time. Q. So, the table, when you say it would engage there, there’s just a little sudden drop – A. Sudden drop.

Q. – while you’re pushing? A. Correct. […] Q. But you didn’t use that for Mr. Arseneault. A. No. Q. Okay. So the next one is the DIF, d, I, f, and you – I think you mentioned that’s diversified? A. Correct. Q. And diversified is, if I understand correctly, correct me if I’m wrong, a series of manipu – manipulations, ther – tech – man – manipulation therapy or techniques with your hands. A. With hand. Q. With hands. And if I look through your treatments that is what you invariably used with Mr. Arseneault – A. Correct. Q. – in his – Okay. The next one is ACT. What is that? A.

It’s referred to as an activator, it’s a spring-loaded instrument. Q. Okay. So, I’m going to show you a photo. I’m going to do it by my phone, it’s all I have, but I just want to make sure that we’re – that I understand the right machine, the right instrument. A. That’s it. Q. That’s it? Okay. Are you – Okay. So, if I look closely at this just it’s – it’s a – it’s a – it looks like it’s a machine that you can hold, like, sort of in the palm of your hand and then fingers? A. That’s correct. Q. And then between the fingers is that an adjustment? At the top for the – the amount of tension that’s on that? A. Correct.

This is a newer model than mine but all the activators have a tension device, there’s a device on there to adjust the amount of force or – amount of force.

Q. So, if you’re using an activator on a – a young child or a large man you can adjust the force of the activator. A. Corr – true. Q. I want to read you just a little

section of a description here and – and I’d like to know if you agree or – or not with this statement. “There are no side effects associated with the activator method of chiropractic adjustment. In fact, it is gentler than the traditional hands- on method of manipulation because there is no extra movement of the joint. The only area that moves is the area that is being adjusted”. Would you agree with those – with – A. No. Q. – that statement? A. No. Q. Okay. Explain what it is you don’t agree with. A.

Whether I adjust the patient with my hand and place my hand on their atlas and deliver a thrust to C1 or I place that instrument on C1 and engage that instrument, I would never tell a patient that one treatment is safer than the other or that there’s no risk associated with the – the – that I would never say that one technique is better than the other. Q. No, I’m not saying what you would tell a patient. This is a statement that is directed to chiropractors – A. Mm-hmm. Q. – from – because they’re the only people buying the item. A. Correct. Q. Okay.

And when this item is described as being gentler than the traditional hands-on method of manipulation as there’s no extra movement of the joint, you disagree with that statement. A. I do. Q. Would you agree that the activator does not involve the carotid artery? A. I have no knowledge of that. Q. The – the next – back in that little box under the cervical area [on the report form], the Cox F/D. What is that?

A. Cox is the founder’s name, Doctor Cox, and he founded that technique called the Cox flexion distraction. Q. Flexion distraction. A. Which is the form of traction I was utilizing on Mr. Arseneault’s lower back. Q. And is that also something that can be used in the cervical area? A. Correct. Q. And how is that performed? To – A. It – Q. – the cervical area. I know you’ve – A. Yeah. Q. – described it to the lower back. A. Correct. Q. Okay. A.

We can contact the occipital bone which is in the back of the head and engage the flexion portion of the table while – instead of my contact is on the spine, lumbar spine, my left hand would be on the back of the patient’s head. Q. Right. A. And I would be tractioning not only the lumbar spine but also providing cephalad or forward force I guess, it’s hard to translate these medical terms to laymen, so cervical traction would be I would be holding the head and then trac – tractioning the rest of the body away from the head which would provide a – a cervical traction experience. Q. Okay.

So rather than pull the head away from the body you’re pulling the body away from the head. A. Correct. Q. Okay. A. With my tables.

Q. With, I’m sorry, your – A. With my tables. Q. Yes. A. There are Cox tables that have a cervical traction in – feature as well but you can also do cervical traction with just the lumbar traction. Q. Okay. But your table allows you to do the Cox flex dis – distraction to the cervical area as well as the lumbar area. A. Correct. Q. So the – the drop table, there’s no turning of the head or twisting of the head. A. No, and correct. Q. Okay. And with the activator you’re not doing a – a – a high velocity twist. A. With the activator adjustment the patient is not moving. Q. Okay.

And that would be the same with the Cox method as well. A. Well I’d be holding – In terms of cervical traction you mean? Q. Yes. A. So I would be holding the head still while the whole spine would be pulled in a downward direction, so there’d be like a linear stretch happening throughout the entire spine. Q. On August 23 rd did you explain the DT, the drop table, to Allen in terms of his cervical treatment? A. I did not. Q. What about the ACT? A. No, I did not. [Transcript of December 15, 2020, pp. 719-727].

[ 35 ] Counsel for Mr. Arseneault returned briefly to the activator treatment option shortly thereafter, to clarify two points in particular: Q. Okay. Fair answer. Getting back to the activator and – and the statement that I read to you, when you say you can – you – you – your activator has adjustments on it. A. Correct. Q. Can that be turned down low enough so that you can use it on a child? A. Correct. Q. And it doesn’t involve the twist of the head. A. Correct. [Transcript of December 15, 2020, p. 730] [ 36 ] One of the expert witnesses, Dr.

Hynes, testified briefly with respect to the activator, stating, “I don’t use the activator in my clinic for the management or treatment of neck conditions because it’s not one of the recommended options for treatment in the Canadian chiropractic clinical practice guidelines” (Transcript of December 16, 2020, p. 785). Earlier, she testified, “I wasn’t trained in activator when I went through Chiropractic College, our focus was on manual therapies” (Transcript of December 16, 2020, p. 772).

Although her testimony may have cast some doubt on the appropriateness of the activator as a treatment option for a patient such as Mr. Arseneault, she also stated, “manipulation and mobilization and exercise and massage are included in those recommendations for treatment options but activator is not one” (Transcript of December 16, 2020, p. 786). [ 37 ] The above passages clearly indicate there were other chiropractic treatment options available. Dr. Glazier-Goldie offered no explanation as to why none were explained to, offered to, appropriate for, or used on Mr. Arseneault.

In fairness, she was not questioned on these points by counsel for Mr. Arseneault, but there is nothing in the transcript to indicate her counsel put these questions to her either, and I note there was no redirect following her cross-examination (Transcript of December 15, 2020, p. 740). The trial judge had clear evidence before him that there were alternatives to the treatment Mr. Arseneault received, but none were presented to him, even after he expressed his reluctance to sign the consent form. [ 38 ] In addition, there was evidence establishing that acupuncture was a treatment option, and Dr.

Glazier-Goldie testified she even had Mr. Arseneault sign a consent form for acupuncture: A. […] First of all, I explain chiropractic and the chiropractic adjustment and the technique I’m choosing for them. In his case I was explaining how I was going to do certain manipulations or adjustments to his spine ahead of time, that was explained. I explained I was also going to use traction on his lower back and I also explained that acupuncture might be a benefit because he has chronic back pain, and in my experience acupuncture always worked quite well.

So, when we got to the informed consent you can see he did sign an acupuncture consent form as well as a chiropractic consent form. […] A. That is the acupuncture consent form. So I – those patients who I feel would benefit from acupuncture as well as chiropractic care I discuss this form with them, and with Mr. Arseneault’s case I felt acupuncture would be of benefit.

But as you can see from the notes, I didn’t end up using it because he was doing so well with the chiropractic care, and I only use the acupuncture if the patient – if we’re having a treatment block or the patient’s not progressing. [Transcript of December 14, 2020, pp. 665-666] [ 39 ] In Lemay , Richard J.A. stated:

It seems to me obvious that if there were viable diagnostic options that would have reduced or eliminated a risk of serious injury, suchoption should have been disclosed to Ms. Lemay. The judge found there were none. The question is, therefore, whether this finding is theresult of a palpable and overriding error.

It will be such an error if it is a plain and obvious error, such as one made in the completeabsence of evidence, or made in conflict with accepted evidence, or made on a misapprehension of evidence, and if the error issufficiently significant to vitiate the finding of fact. [para. 41] [40] The critical difference between Lemay and the present is that the trial judge found there were noviable options that should have been disclosed to Ms. Lemay. Here, the trial judge correctly came to the opposite conclusion.

Followingthe analytical framework set out in Lemay, the question on appeal then becomes “whether this finding is the result of a palpable andoverriding error.” In my opinion, it was not. Just as the judge in Lemay had “evidentiary support” for his findings of fact, the judge inthis case similarly had evidentiary support for his findings. [41] I note that in Lemay, Richard J.A. concluded, “As there was an evidentiary basis for the trialjudge’s conclusion, deference is owed” (para. 49). The same is true with respect to the judge’s conclusion in this case. Deference isowed. E. Issue three – allowing Dr.

Christie to testify as an expert witness [42] At the time of trial, Dr. Timothy Christie was the Regional Director of Ethics Services for theHorizon Health Network in New Brunswick. Although not a medical doctor, he has a PhD as an ethicist, with a master’s degree in healthsciences specializing in medical ethics, and he has written a thesis on “the legal history and theoretical aspects of informed consent.” [43] Counsel for Dr. Glazier-Goldie objected to Dr. Christie being qualified as an expert andquestioned the relevance and necessity of his possible testimony.

Following a recess to consider the arguments presented by both parties,the trial judge concluded, “Effective and [non-biased] communication of risks involved in a medical […] intervention is based onscientific knowledge or information which is likely to be outside the experience and knowledge of the trier of fact.” He continued, “Thefacts on which Doctor Christie will be giving opinion evidence are relevant, necessary, not subject to any exclusionary rule and theexpert is properly qualified.

The benefits of admitting the evidence outweighs potential risk considering the legal relevance, necessity,reliability and absence of bias” (Transcript of December 14, 2020, p. 571). In rendering this decision, the trial judge was referring to thefour-part test for the admission of expert evidence set out by the Supreme Court in R. v. Mohan, (CSC), [1994] 2 S.C.R.9, [1994] S.C.J. No. 36 (QL).

Finally, he determined, “Doctor Christie is therefore recognized as an expert in ethics, being authorized togive opinion evidence with respect to the consent process and practices in studies that inform the informed consent document signed bythe plaintiff” (Transcript of December 14, 2020, p. 533). [44] In his decision, the trial judge set out the text of the consent form which is provided by theCanadian Chiropractic Protective Association and was used by Dr.

Glazier-Goldie, and, according to the evidence, chiropractors acrossCanada: The document reads: INFORMED CONSENT TO CHIROPRACTIC TREATMENT There are risks and possible risks associated with manual therapy techniques used by doctors of chiropractic. In particular, you shouldnote:

a) While rare, some patients may experience short term aggravation of symptoms or muscle and ligament strains or sprains as aresult of manual therapy techniques. Although uncommon, rib fractures have also been known to occur following certain manual therapyprocedures;

b) There are reported cases of stroke associated with visits to medical doctors and chiropractors. Research and scientific evidencedoes not establish a cause and effect relationship between chiropractic treatment and the occurrence of stroke rather, recent studies

indicate that patients may be consulting medical doctors and chiropractors when they are in the early stages of a stroke. In essence, there is a stroke already in progress. However, you are being informed of this reported association because a stroke may cause serious neurological impairment or even death. The possibility of such injuries occurring in association with upper cervical adjustment is extremely remote;

c) There are rare reported cases of disc injuries identified following cervical and lumbar spinal adjustment, although no scientific evidence has demonstrated such injuries are caused, or may be caused, by spinal adjustments or other chiropractic treatment;

d) There are infrequent reported cases of burns or skin irritation in association with the use of some types of electrical therapy offered by some doctors of chiropractic . I acknowledge I have read this consent and I have discussed, or have been offered the opportunity to discuss, with my chiropractor the nature and purpose of chiropractic treatment in general, (including spinal adjustment), the treatment options and recommendations for my condition, and the contents of this Consent . I consent to the chiropractic treatment recommended to me by my chiropractor including any recommended spinal adjustments .

I intend this consent to apply to all my present and future chiropractic care . [para. 25] [ 45 ] Of particular interest for the purposes of this appeal is

section “b” dealing with the risk of stroke. The trial judge summarized Dr. Christie’s evidence on this point as follows: He expressed his opinion that the very first line of the Consent Form, reading: There are reported cases of stroke associated with visits to medical doctors and chiropractors , “anchors” the event of having a stroke in a way that implies that the risk of stroke, after seeing a chiropractor, is no greater than the risk of stroke after seeing a medical doctor.

Quoting an expert in cognitive biases and Nobel laureate, he describes this anchoring effect as: It occurs when people consider a particular value for an unknown quantity before estimating that quantity. What happens is one of the most reliable and robust results in experimental psychology: the estimates stay close to the number that people considered – hence the image of an anchor .

He explained that in our situation, the risk of stroke is the unknown quantity and added: Before the reader is told anything about whether or not they are at risk of having a stroke, they are led to believe that a risk is no greater than when visiting a medical doctor. This provides an “emotional anchor” and, according to this theory, future considerations of risk will be “anchored” close to this original belief regardless of any new information presented to the reader .

He also considers that first statement as misleading as it refers to “visits” to a doctor or a chiropractor and not to cervical manipulation, which is the intervention associated with a risk of stroke. As for the second statement found in the form, reading: Research and scientific evidence does not establish a cause and effect relationship between chiropractic treatment and the occurrence of stroke ... , Dr. Christie thought it to be both misleading and incomplete.

He testified that it is misleading because the type of scientific studies done to date can only identify an association between two variables but cannot prove a causal relationship. He indicated that it is therefore misleading to say that the research and scientific evidence do not establish a cause and effect relationship when this has not been studied yet. He also indicated that the published literature on the subject is of very low quality, with a high risk of bias and confounding. He adds: The science is so weak that it is not possible to tell if this association is real or if it is spurious ...

The scientific conclusion is that we have observed an association between manipulative therapy and stroke, but we do not know if it is a real association nor do we know if it is causal . On that

section of the form, he concludes: ... it would be better to explain to the patient that in the absence of evidence we still have to make a decision about whether or not to pursue treatment or not ... A categorical statement, such as “Research and scientific evidence does not establish a cause and effect relationship” made in the absence of any valid evidence, is misleading and demonstrates a strong bias in favour of chiropractic treatment ... It is my opinion that this

section of the informed consent form actually informs the reader that there is no cause and effect relationship between upper cervical manipulation and stroke, which is somewhat misleading .

As for the third statement found in the consent form, reading: ... rather, recent studies indicate that patients may be consulting medicaldoctors and chiropractors when there (sic) are in the early stages of a stroke. In essence, there is a stroke already in progress, Dr.Christie described the phenomenon as “protopathic bias,” meaning that people may have already suffered a dissection of the artery,causing them pain and headaches. They consult their doctor and/or chiropractor and then suffer a stroke that was already in progress.

He believed that the statement incorrectly says that the association between chiropractic treatment and stroke is wholly explained byprotopathic bias, which is not borne by the available scientific data. [paras. 63-70] [46] The trial judge went on to hold that the consent form used by Dr. Glazier-Goldie “undulyminimized the risk” of stroke (para. 150). In my opinion, reaching that specific conclusion was entirely open to the trial judge based onthe evidence before him. [47] In the recent decision of Young v. Dr. Bandyayera, 2022 NBCA 18, [2022] N.B.J.

No. 100(QL), Quigg J.A., writing for the Court, noted, “The trial judge’s discretion to accept or refuse expert opinions is not to be overturnedlightly” (para. 19). I would not, from the vantage point of the appellate court, second guess the decision of the trial judge to qualify Dr.Christie as an expert for the purposes explained above. His role was not to opine on the course of treatment offered to Mr. Arseneault byDr. Glazier-Goldie, but rather to bring his expertise and experience to bear on an examination of the informed-consent form used.

Even ifI were to determine the trial judge should not have qualified and heard evidence from Dr. Christie as an expert witness, I am of theopinion the outcome in this case would have been precisely the same. The trial judge’s determination that there was no informed consentnor proper disclosure of alternate forms of treatment is well supported by the other evidence that was before him. I would therefore rejectthis ground of appeal. F. Issue four – finding a breach of the duty to disclose [48] The trial judge found that Dr. Glazier-Goldie had a duty to disclose to Mr.

Arseneault the risk ofstroke associated with the treatment she intended to provide: The Supreme Court of Canada, in Reibl v. Hughes (CSC), [1980] 2 S.C.R. 880, summarized the duty to inform in thesewords: In

summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgicaloperation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, withoutbeing questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risksattendant upon the performance of the operation.

However, having said that, it should be added that the scope of the duty of disclosureand whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case. The Court in Hopp v. Lepp, supra, also pointed out that even if a certain risk is a mere possibility which ordinarily need not be disclosed,yet if its occurrence carries serious consequences, as for example, paralysis or even death, it should be regarded as a material riskrequiring disclosure. As in this case, in Reibl v. Hughes, the risk included the risk of stroke.

The Supreme Court said that this was, without question, a materialrisk. Applying the teachings from our Court of Appeal in Mason v. Forgie (1986) (NB CA), 73 N.B.R. (2d) 193, Ihave no difficulty in concluding that the risk of stroke was material and needed to be disclosed. That decision also stated that the duty tomake proper disclosure also applies to chiropractors and not only to surgeons. [paras. 146-47] [49] As noted, the trial judge referred to the Court’s decision in Mason v. Forgie (1986), (NB CA), 73 N.B.R. (2d) 193, [1986] N.B.J. No. 104 (C.A.) (QL).

That case obviously informed the trial judge’s analysis,and with good reason. Mr. Mason suffered a stroke following a neck manipulation performed by his chiropractor, Dr. Forgie. The judgein that case found the doctor liable on the basis of his failure to properly inform Mr. Mason of the risk of stroke, albeit rare, associatedwith the procedure. That judge also found that a reasonable person in Mr. Mason’s position, properly informed of the risk, would nothave consented to the manipulation.

[50] On appeal, the three judges on the panel determined the appeal should be dismissed, albeit forsomewhat different reasons. Writing for the majority, Hoyt J.A. (later C.J.N.B.) held that, “if the possibility of a stroke is a knownconsequence of a cervical adjustment, it is a material risk which must be disclosed” (para. 32). He went on to conclude as follows: The trial Judge considered the evidence, including the evidence drawn to our attention, in detail in coming to his conclusion that areasonable person in Mr. Mason’s position, if fully informed, would not have undergone the cervical adjustment.

In my view, in thesecircumstances, we would be usurping the trial Judge’s function if we substituted our opinion for his by saying that a reasonable person inMr. Mason’s position, if fully informed, would have gone forward with the procedure. As Ritchie, J. said in Stein Estate et al. v.

TheShip “Kathy K” et al., (CSC), [1976] 2 S.C.R. 802; 6 N.R. 359, at p. 366: These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to bereversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessmentof the facts.

While the Court of Appeal is seized with the duty of re-examining the evidence in order to be satisfied that no such erroroccurred, it is not, in my view, a part of its function to substitute its assessment of the balance of probability for the findings of the judgewho presided at the trial. [para. 37] [51] The concurring reasons for decision penned by Stratton C.J.N.B. in Mason are also helpful andbear repeating, and in particular the following: In the present case it was conceded by Dr. Forgie that although he was aware that neurological accidents can occur from neckmanipulation, he did not inform Mr.

Mason of the possibility of a stroke or of any other risks associated with a cervical adjustment.While there is an awareness in his profession that neurological accidents or strokes can occur it was Dr. Forgie’s contention that a risk ofsuch occurrences is so rare that it need not be disclosed to patients. The learned trial Judge decided otherwise. Though a rare occurrence,the Judge was satisfied that “the possibility of a stroke induced by a neck manipulation has been identified”.

He was also satisfied thatthe possible occurrence of a stroke from neck manipulation was “a material risk requiring disclosure . . . particularly bearing in mind theseriousness of the possible consequences”. The learned trial Judge also held that the duty of disclosure applied to chiropractors as well as to surgeons. He said: “I can see nodistinction between surgical and non-surgical treatment if material risks are involved”. … “I am satisfied that [Dr.

Forgie] when hecarries out a neck manipulation to another is of the class of persons who are obligated, if such treatment involves material risk, to obtainthe informed consent of that patient.” I would respectfully agree with the trial Judge that when material, unusual or special risks are involved, the duty to make properdisclosure applies to chiropractors as well as to surgeons. This view is, I think, supported by the statements of Chief Justice Laskin inHopp v. Lepp that the duty to disclose risks to a patient includes the risks of treatment or therapy as well as the risk of surgery. [paras. 6-8] [52] Dr.

Glazier-Goldie argues that the trial judge erred in finding she breached her duty ofdisclosure without determining the scope of that duty. I disagree. As found by the trial judge, the duty was straightforward: Mr.Arseneault was entitled to be properly advised of the risk of stroke associated with the planned procedure in a manner that was clear andnot misleading or minimizing. He determined that this did not happen, and I see no scope for appellate intervention. I would dismiss thisfourth and final ground of appeal. IV.

Conclusion and Disposition [53] The trial judge had ample evidence in the record before him to decide as he did. The role of thisCourt is to ascertain whether any of the challenged aspects of that decision are the product of reversible error. In my opinion, they arenot. [54] I would dismiss the appeal, and order that Dr. Glazier-Goldie pay costs in the amount of $3,500.

Version française de la décision de la Cour rendue par LE JUGE GREEN I. Introduction [1] Leonard Allen Arseneault s’est retrouvé avec de graves déficits neurologiques après avoir subi, le 10 février 2013, un accident vasculaire cérébral (AVC). Âgé alors de 47 ans, il était client de la D re Lynn Glazier-Goldie, chiropraticienne. M.

Arseneault a intenté une action en justice contre sa chiropraticienne, faisant valoir sa responsabilité en négligence pour l’AVC subi et le préjudice qui en est résulté. [2] À l’issue d’un procès portant sur la responsabilité, un juge de la Cour du Banc de la Reine (tel était alors son nom) a rendu une décision le 14 mai 2021 ( Arseneault c. Goldie , [2021] A.N.-B. n o 139 (QL) ) : [TRADUCTION] Compte tenu de l’ensemble de la preuve, je conclus que, très probablement, le dernier traitement chiropratique reçu par le demandeur a entraîné la dissection de son artère carotide.

Avec le temps, le problème s’est aggravé et il en est résulté un caillot sanguin. Ce caillot s’est détaché lorsque M. Arseneault a soulevé la lourde bille et cela a occasionné l’AVC. Le demandeur a donc prouvé selon la prépondérance des probabilités, comme il lui incombait, que n’eut été de la dernière intervention chiropratique, il n’aurait pas subi l’AVC. Autrement dit, selon toute vraisemblance, la défenderesse a causé la lésion du demandeur et elle est responsable envers lui, en négligence, du préjudice subi. Il nous faut maintenant évaluer le préjudice.

Les dépens seront ensuite calculés. [par. 175 à 177] [3] La D re Glazier-Goldie interjette appel et demande que la décision soit infirmée. Je ne décèle aucune erreur de la part du juge du procès qui justifierait l’intervention en appel et, par conséquent, je suis d’avis de rejeter l’appel. II. Contexte [4] Après avoir terminé ses études secondaires, M. Arseneault a fréquenté le Collège communautaire du Nouveau-Brunswick.

Il a ensuite travaillé dans le domaine de la vente et de l’installation de produits électroniques, notamment de chaînes audio, de récepteurs de signaux de satellite et de systèmes de sécurité. [5] En 1994, M. Arseneault s’est fracturé la clavicule lors d’un accident de moto hors route; il s’est absenté du travail pendant presque deux ans parce qu’il ne guérissait pas complètement. Environ 18 mois plus tard, ses médecins ont préconisé une intervention chirurgicale.

Après avoir été informé des risques encourus, notamment la possibilité d’une intervention infructueuse, et du fait qu’il ne pourrait pas travailler encore une fois pendant une longue période, M. Arseneault a choisi de ne pas subir la chirurgie.

[6] Dès l’enfance, M. Arseneault a souffert de maux de tête et, depuis 2004, il se fait prescrire des médicaments contre les migraines. [7] En 2008, alors qu’il montait sur une échelle à l’intérieur d’un petit placard, M. Arseneault s’est frappé la tête sur une poutre en bois. Il a déclaré avoir entendu ou ressenti un claquement. Dans les jours qui ont suivi, M. Arseneault a souffert de graves maux de tête et il est allé consulter un médecin. Une radiographie prise à ce moment n’a révélé aucune anomalie. M. Arseneault a reçu six traitements de chiropractie d’un chiropraticien autre que l’appelante. Au procès, M.

Arseneault a déclaré qu’il avait obtenu des services de massothérapie, d’acupuncture et de stimulation électronique pendant ces séances de traitement, mais qu’il n’avait pas subi de manipulations chiropratiques. [8] En 2010, M. Arseneault a subi une autre lésion lors de la défaillance d’une plateforme sur laquelle il marchait, chargé de matériel pesant de 40 à 60 livres. Dans les notes qu’il a prises, son médecin fait état de douleurs dans le haut de la région lombaire et mentionne que M. Arseneault souffre depuis plus de 15 ans de douleurs dans le bas du dos. M.

Arseneault a reçu des soins de massothérapie chaque semaine pendant un mois environ, et au besoin par la suite. [9] En 2011, M. Arseneault a subi une lésion à l’épaule gauche en tombant dans un escalier. Il s’est rendu à l’urgence de sa région puis, après avoir reçu un diagnostic d’épaule disloquée, il est allé à une clinique d’orthopédie. Le recours à la chirurgie a été évoqué, mais, après avoir été informé des risques en découlant, M. Arseneault a préféré d’autres formes de traitement. M. Arseneault n’a pu travailler pendant quelques mois et a reçu des soins de physiothérapie.

À l’époque, il est aussi tombé sur la glace et, de nouveau, on lui a dit qu’il devrait peut-être envisager une chirurgie. [10] En février 2012, M. Arseneault est tombé d’une chaise et il s’est heurté la tête. Il a mentionné cette chute à son massothérapeute en disant ressentir une douleur au cou. Le massothérapeute fait état, dans des notes consignées à diverses dates en 2012, de douleurs chroniques persistantes au cou. [11] Le 13 août 2012, M. Arseneault a rencontré la D re Glazier-Goldie pour une évaluation initiale.

La D re Glazier-Goldie est diplômée du Canadian Memorial Chiropractic College et membre de l’Association des chiropraticiens du Nouveau-Brunswick. [12] Le juge du procès a conclu que l’examen physique de M. Arseneault pratiqué par la D re Glazier-Goldie avait : [TRADUCTION] […] révélé une perte de 25 % de la rotation cervicale droite et de la flexion latérale droite accompagnée d’une légère douleur, ainsi qu’une perte de 50 % de la rotation gauche et de la flexion latérale gauche accompagnée d’une légère douleur. Réduite de 25 %, l’extension cervicale est accompagnée d’une légère douleur.

Les tests neurologiques n’ont rien révélé d’inhabituel. Des radiographies ont été prises et un rendez-vous de suivi a été fixé au lendemain pour le demandeur. Cette première séance a duré une heure environ. [par. 20] [13] M. Arseneault a demandé le report du rendez-vous de suivi en raison d’un conflit avec son horaire de travail, et il a vu la D re Glazier-Goldie à nouveau le 23 août 2012. À ce deuxième rendez-vous, la D re Glazier-Goldie a expliqué son diagnostic et son plan de traitement, devant comporter de la manipulation vertébrale, et elle a donné à M.

Arseneault des recommandations relatives au mode de vie. Le juge du procès a écrit ce qui suit : [TRADUCTION] M. Arseneault a reçu son premier traitement ce jour-là, puis d’autres à intervalles irréguliers, principalement parce qu’il n’était pas toujours disponible. Il jugeait que les traitements l’aidaient. Ces traitements comprenaient de la manipulation chiropratique, faisant notamment appel à une technique de manipulation vertébrale, de haute vélocité et faible amplitude, ciblant la région traitée. [par. 34] [14] Nous donnerons des précisions, dans l’analyse exposée plus loin dans les présents motifs, sur

l’historique de la présente affaire en ce qui concerne les rapports entre M. Arseneault et la D re Glazier-Goldie quant à la question du consentement éclairé et des traitements possibles dont ils ont pu discuter. [15] La description par le juge du procès de la visite de M. Arseneault au cabinet de la D re Glazier-Goldie, le 18 janvier 2013, est d’importance capitale pour le présent appel : [TRADUCTION] Le 18 janvier 2013, le demandeur a reçu de la défenderesse son 21 e traitement.

Il a déclaré que la défenderesse avait tenté de faire [TRADUCTION] « craquer » son cou vers la droite, mais qu’il n’y avait pas eu de craquement. La défenderesse a effectué la manipulation du côté gauche, puis elle est revenue au côté droit, en employant beaucoup plus de force. Le cou a « craqué » en produisant un bruit lourd, beaucoup plus fort qu’à l’habitude. Surpris et craignant que son cou soit brisé, le demandeur l’a déplacé très lentement. Son cou semblait correct et ne lui causait pas de douleur.

Selon sa description du traitement au cou qu’elle a appliqué ce jour-là, la défenderesse a incliné la tête du demandeur, a localisé la vertèbre C2 avec l’index, a incliné la tête vers la droite jusqu’à ce qu’elle sente l’articulation, puis a effectué une manipulation rapide. Bien que cela ne soit pas consigné dans ses notes, la défenderesse se rappelle que la première manipulation n’avait produit aucune cavitation et qu’une manipulation plus énergique était donc requise. Elle se rappelle que le demandeur avait été surpris par le bruit plus fort qu’à l’habitude.

Elle lui a demandé si tout allait bien et il avait répondu [TRADUCTION] « oui » tout en s’asseyant et en se tournant la tête lentement. [par. 35 et 36] [16] Immédiatement après la séance de traitement chiropratique décrite ci-dessus, M. Arseneault est allé voir son massothérapeute. Il a ensuite tenté de retourner travailler, mais il n’a pu le faire parce qu’il souffrait d’un intense mal de tête. Il est plutôt allé s’allonger à la maison et a annulé une activité sociale prévue avec des voisins ce soir-là, en raison du [TRADUCTION] « martèlement » résonnant dans sa tête. M.

Arseneault n’a pas réussi à retourner travailler les jours suivants. Le juge du procès a souligné que M. Arseneault n’avait jamais pu reprendre le travail. [17] Le 10 février 2013 est la prochaine date d’importance. Je reprends les faits exposés par le juge du procès : [TRADUCTION] Selon son témoignage, M. Arseneault avait prévu faire de la motoneige ce jour-là, mais il ne se sentait pas bien. Il attendait l’arrivée d’amis avec leurs motoneiges. Une bille entravait la piste de motoneige. Le demandeur l’a attachée avec une corde et l’a traînée avec son camion jusqu’à la cour.

Se servant de son extrémité la plus légère, le demandeur a envoyé la bille par-dessus le banc de neige. La preuve indique que la bille pesait 90 livres à son extrémité la plus légère et 110 livres à l’autre extrémité. Le demandeur a fait tourner la bille à quelques reprises. Sa vue a commencé à s’embrouiller et il a présenté d’autres signes d’AVC. Son épouse a appelé une ambulance. La douleur à la tête est devenue si intense que le demandeur a commencé à vomir. Le demandeur s’est présenté peu après 13 h au service d’urgence de l’Hôpital de Miramichi.

Le médecin traitant était le D r Slorach, le médecin de famille du demandeur. Le médecin a constaté chez le demandeur une faiblesse du côté gauche et un trouble d’élocution. Il avait aussi de graves maux de tête depuis un ou deux jours, attribués initialement à une migraine récurrente. Le demandeur était apte à répondre et il pouvait communiquer, mais la force motrice de son bras et de sa jambe gauches était réduite. Un diagnostic d’AVC a été établi.

On a immédiatement recouru à un tomodensitogramme, qui n’a révélé l’existence d’aucune hémorragie apparente dans la zone du cerveau; cela a permis d’éliminer l’AVC hémorragique comme diagnostic. Après qu’on a discuté avec lui des risques et avantages d’un traitement thrombolytique, M. Arseneault a accepté le recours à ce traitement, qui a été effectué immédiatement et a amélioré sensiblement l’état du patient. Le demandeur a été transféré à l’unité de soins intensifs. Le 11 février 2013, il a été confié de nouveau aux soins du D r Slorach.

Il est mentionné ce qui suit dans une

partie du dossier d’urgence intitulée [TRADUCTION] « Antécédents médicaux// Données subjectives » : [TRADUCTION] Le patient se plaint de graves maux de tête ayant débuté la nuit dernière. Il en a souffert toute la journée hier . Dans les notes chronologiques détaillées, il est indiqué, à 13 h 10 : [TRADUCTION] Graves maux de tête, vomissements et faiblesse du côté gauche, a dit avoir des symptômes semblables à ceux de la grippe les trois derniers jours . En contre-interrogatoire, M.

Arseneault a déclaré qu’il était confus à son arrivée à l’hôpital ([TRADUCTION] Réveillé mais somnolent , selon le dossier d’urgence) et qu’il avait dû vouloir dire trois semaines et non trois jours. On mentionne la même chose dans le dossier de triage : [TRADUCTION] Gros mal de tête depuis hier soir . En contre-interrogatoire, M. Arseneault a répété qu’il avait eu des maux de tête depuis son dernier traitement chiropratique; cela avait empiré la veille, et il avait pensé que c’était une sinusite. […] Les tomodensitogrammes ont présenté des résultats concordant avec un infarcissement aigu.

Le D r Slorach a été informé par son patient qu’il avait récemment eu des manipulations chiropratiques au cou. Le médecin a demandé qu’on effectue une angiotomodensitométrie. Le rapport fait état des motifs de cette demande : [TRADUCTION] Récent infarcissement sévère de l’artère cérébrale moyenne droite. Flot très lent de l’artère carotide interne droite selon l’examen Doppler carotidien. Exclure la dissection de l’artère carotide interne. Récente manipulation chiropratique du cou . Les résultats concordaient avec une dissection étendue de l’artère carotide interne droite.

Ce jour-là, le D r Slorach a consigné ce qui suit dans ses notes : [TRADUCTION] Tomodensitogramme : thrombose de l’ACM. Infarcissement : traité au moyen d’un TPA avec un bon rétablissement du côté gauche. Pour : non-fumeur, pas d’antécédents familiaux d’affection vasculaire, pas de diabète. Contre : surpoids, stéatose hépatique, hypertension limite, glycémie à jeun . Excès d’alcool le week-end dans le passé, utilisation récente de Maxalt. Manipulations chiropratiques du cou ++ : dernier 1/12 avant le commencement. (15 visites ces derniers mois) .

La dissection artérielle est la déchirure de la paroi interne de l’artère qui occasionne l’irruption de sang entre les couches de la paroi artérielle. Tandis que le sang se ramassant entre les couches de la paroi élargit ou agrandit l’artère, il comprime ou rétrécit aussi le passage au centre de l’artère. Il en résulte une obstruction partielle ou complète du vaisseau sanguin. Une dissection peut entraîner un AVC par une réduction du flux sangui

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