2014 NBCA 59, 2014 NBCA 59

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 34-12-CA LISE NATHALIE LEMAY APPELLANT LISE NATHALIE LEMAY APPELANTE - and - - et - DR. THOMAS H. PETERS RESPONDENT LE DOCTEUR THOMAS H. PETERS INTIMÉ Lemay v. Peters, 2014 NBCA 59 Lemay c.

Peters, 2014 NBCA 59 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : l’honorable juge Robertson l’honorable juge Richard l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: February 29, 2012 Appel d’une décision de la Cour du Banc de laReine : le 29 février 2012 History of case: Decision under appeal: 2012 NBQB 68 Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : 2012 NBQB 68 , 2012 NBBR 68 Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 12 and November 28, 2013 Appel entendu : les 12 septembre et 28 novembre 2013

Judgment rendered: September 11, 2014 Reasons for judgment by: The Honourable Justice Richard Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Jugement rendu : le 11 septembre 2014 Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Robertson l’honorable juge Green Counsel at hearing: For the appellant: Eugene J. Mockler, Q.C., and Kevin C. Toner For the respondent: Robert M. Dysart THE COURT The appeal is dismissed with costs. Avocats à l’audience : Pour l’appelante : Eugene J. Mockler, c. r., et Kevin C. Toner Pour l’intimé : Robert M.

Dysart LA COUR L’appel est rejeté avec dépens. The following is the judgment delivered by RICHARD J.A. I. Introduction [ 1 ] “While lady justice may be blind, she ought not to be without compassion” exclaimed counsel for Lise Nathalie Lemay, beginning his oral submission on the first day of the hearing of Ms. Lemay’s appeal from the dismissal of her medical malpractice claim against Dr. Thomas H. Peters. Indeed, if compassion were the basis upon which this appeal was to be decided, victory for Ms.

Lemay would surely follow, for even the coldest of all hearts could not remain unmoved by the tragedy of this case. [ 2 ] As a 37-year-old single mother of a boy with Asperger’s syndrome, Ms. Lemay worked as a hairstylist from her own home. She led an active and healthy life. Having previously lost a sister to cancer, Ms. Lemay urged her family physician to refer her to a specialist to address her concerns over a lump in her breast and swollen nodes in her neck. In the spring of 2005, she was referred to Dr. Peters, a thoracic and general surgeon, who decided to biopsy the breast and a lymph node on the neck. The

diagnostic procedure initially appeared to have gone well. It achieved its objective of diagnosing the underlying problem, namely Hodgkin’s disease. However, in the aftermath of the surgery, Ms. Lemay noticed that mobility in her left arm was very limited and that pain was not subsiding. A call to Dr. Peters’ office resulted in the receptionist conveying Dr. Peters’ view that Ms. Lemay’s shoulder issues were likely due to inflammation pressing on nerves and that they would eventually resolve. [ 3 ] Ms. Lemay’s condition did not settle.

In fact, it worsened to the point she is now left with the virtual loss of her left arm and shoulder for most of her daily tasks, and with ongoing pain. But for a few hours a week, she has not been able to return to her pre-injury career and, as a result, lost her home and her hair salon to foreclosure. [ 4 ] Yes, if compassion were the basis upon which this appeal was to be determined, Ms. Lemay would indubitably emerge victorious.

However, while judges are certainly not – nor should they be – immune from compassion in their daily work, the judicial oath of office is “do right to all manner of people according to law ”: Judicature Act , R.S.N.B. 1973, c. J-2, s. 3(1) (emphasis added). And while the law itself is not devoid of compassion where necessary and appropriate, compassion is not a feature of the principles that govern a medical malpractice claim. [ 5 ] There is no question that there are further aspects of this case that add to one’s sense of compassion for Ms. Lemay. Dr.

Peters’ record keeping was far from being a model of precision. Undoubtedly, erroneous anatomical references in his documents and his less than ideal post-surgery follow-up did nothing to enhance the quality of his care in Ms. Lemay’s estimation. Yet, as critical as one might be of these failures, this appeal is really about whether, in his assessment of the matter, the trial judge applied the correct legal principles, or committed any palpable and overriding error, in concluding Dr. Peters was not legally liable for the tragic result of the biopsy he performed on Ms. Lemay.

If the judge applied the correct principles, then his decision is owed deference and may only be overturned on appeal if palpable and overriding error is found either in his findings of fact, or in his application of the law to those findings in reaching the ultimate decision on liability. These are the principles that govern this appeal, and, in the end, though herculean in task for this particular judge, compassion must yield way to the cold hard analysis of the law and the appeal must be dismissed. II.

Factual background [ 6 ] In setting out the factual background of this case, I paraphrase liberally from the trial judge’s decision reported at 2012 NBQB 68 , 384 N.B.R. (2d) 69 . [ 7 ] In approximately March 2004, Ms. Lemay, then 36, noticed a lump in her neck. Over the course of the next several months, she sought referrals to three separate specialists who assured her there was no cause for concern. In early 2005, however, Ms. Lemay discovered a lump in her breast and was referred to Dr. Peters. [ 8 ] Dr. Peters saw Ms. Lemay in his office on June 1, 2005.

Although the primary purpose of her visit was the lump in her breast, Ms. Lemay also informed him of the lumps in her neck and told him she was experiencing night sweats. Dr. Peters suspected lymphoma and suggested a nodal biopsy for diagnostic purposes. He told her the procedure would leave her with scars. He explained it would be necessary to perform the biopsy under general anesthetic, with all the associated risks of general anesthesia. Ms. Lemay says Dr. Peters did not explain those risks, but she was already aware of them.

She inquired about the possibility of fine needle aspiration (or needle biopsy), but Dr. Peters informed her that such a procedure would not provide enough tissue for diagnostic purposes. [ 9 ] On June 24, 2005, Dr. Peters performed a biopsy of a node located in the left rear area of Ms. Lemay’s neck, known as the left posterior triangle. He dissected directly over the node. In that area of the body runs the spinal accessory nerve, a cranial nerve that supplies two muscles in the neck/upper back: the sternocleidomastoid and trapezius.

No complications were noted during the surgery and there was, at the time, no indication any damage might have been done to any nerve. Dr. Peters also biopsied the node in Ms. Lemay’s breast. The resulting pathologies revealed the breast lump was benign but the cervical node evidenced Hodgkin’s disease. This led to several months of treatment for Ms. Lemay, including chemotherapy. [ 10 ] While convalescing at home in the aftermath of the surgery, Ms. Lemay experienced pain in her left arm and shoulder. She called Dr.

Peters’ office and spoke to his receptionist, telling her there was a little infection on the breast and that she was having an issue with her arm. According to Ms. Lemay, this information was passed along to Dr. Peters, and the receptionist then relayed his consequent message that the pain was likely due to inflammation and should resolve in a few days.

[ 11 ] Ms. Lemay had no further contact with Dr. Peters or his office. She complained to her family physician of muscle wasting and pain in the area of her trapezius muscle, affecting her shoulder function. Ms. Lemay was referred to other specialists for further investigation, leading to an eventual diagnosis of spinal accessory nerve palsy that would require surgical repair. A further referral was made, this time to a plastic surgeon, but Ms. Lemay declined further surgery. [ 12 ] Ms.

Lemay’s injury to the spinal accessory nerve, which resulted in paralysis of the trapezius muscle, led to muscle wasting and winging of the scapula, as well as considerable loss of function in the left shoulder and arm. She is left with a permanent partial disability, one that has a significant impact on her enjoyment of life. Her ability to participate in certain activities is severely restricted. Ms.

Lemay’s diligent efforts to accommodate the injury have enabled her to somewhat cope with constant pain, but she is nevertheless left with limited ability to work as a hairstylist and requires assistance for certain household chores. [ 13 ] Ms. Lemay brought an action against Dr. Peters claiming damages for the injury she suffered during the biopsy. She alleged Dr.

Peters: (1) was negligent in the performance of the biopsy and thereby caused damage to a nerve or nerves in the left lateral accessory nerve area; (2) did not provide adequate post-operative care; and (3) did not explain to her the risks of the biopsy of the node in question and the consequences of those risks, or inform her of alternatives to the procedure he was proposing. Dr. Peters denied the allegations. [ 14 ] The action proceeded to trial in the Court of Queen’s Bench in 2011. On February 29, 2012, the trial judge issued a decision dismissing Ms.

Lemay’s claim. [ 15 ] With respect to the first allegation, the trial judge explained: “all of the medical evidence presented in this case confirms that injury to the spinal accessory nerve is a recognized risk of a biopsy procedure in the posterior triangle of the neck” that “can occur even when the surgeon’s technique was entirely appropriate” (para. 17). In other words, when such an injury occurs after a biopsy procedure, “it is not evidence of negligence”. [ 16 ] The trial judge did not agree with Dr. Peters’ contention that Ms.

Lemay had not proven causation because she had not undergone exploratory surgery to detect if the spinal accessory nerve had in fact been injured. To the contrary, the judge concluded: “the evidence establishes on a balance of probabilities that Ms. Lemay’s injuries arise from surgical or iatrogenic injury to the spinal accessory nerve” (para. 23). Iatrogenic was defined at trial as meaning “caused by a procedure done by trauma”, including trauma in the course of surgery. [ 17 ] Yet, the trial judge did not find liability. Noting the absence of expert testimony “to suggest that Dr.

Peters did not meet the standard of care in either the selection of the node or the actual performance of the biopsy” (para. 54), the judge concluded Ms. Lemay had “failed to establish on a balance of probabilities that Dr. Peters acted negligently in connection with the performance of the biopsy” (para. 56). Moreover, the judge accepted the testimony of a defence medical expert who opined that “the description of the surgery provided by Dr. Peters fell within the standard of care” (para. 56). [ 18 ] As for the allegation Dr. Peters had not provided adequate post-operative care, the judge dismissed Ms.

Lemay’s claim on two bases. First, the judge accepted the evidence of a defence expert over one called by Ms. Lemay and concluded that Dr. Peters’ follow-up care had met the standard of care expected of him. Second, the judge found that the failure to arrange for follow-up had neither caused nor contributed to Ms. Lemay’s condition. [ 19 ] The first basis for dismissing the allegations of inadequate post-operative care pitted differing expert opinions. Ms. Lemay had called a medical expert who offered the opinion that Dr.

Peters’ failure to follow up had not met the standard of care expected of a surgeon in the circumstances. The judge pointed out that this expert’s opinion was based on his understanding that Dr. Peters had failed to arrange a visit after being advised Ms. Lemay could not move her arm . Yet, the testimony at trial had not established that fact. Ms. Lemay testified she had reported to Dr. Peters’ receptionist she was having “issues with” her arm. The judge rather accepted the opinion of an expert witness to the effect that the failure to arrange for a post-operative visit, even after Ms.

Lemay had reported “an issue” with her arm, “fell within the standard of care” (para. 64). [ 20 ] In addition, the judge found that a reasonable person in Ms. Lemay’s position would have communicated further with the surgeon’s office if the problem she was experiencing with her arm had not resolved with time. Yet, Ms. Lemay did not communicate further with Dr. Peters’ office after having reported “issues with” her arm. The judge concluded: “Dr. Peters cannot be faulted for failing to react to a problem of which he was not properly apprised” (para. 67).

[ 21 ] On the question of causation for failure to follow up, the trial judge found that “[the] lack of follow-up did not cause any injury to Ms. Lemay” (para. 68). The evidence established that all Dr. Peters could have done had there been a follow-up was refer Ms. Lemay to a nerve surgeon or a plastic surgeon. Within two weeks following the biopsy, Ms. Lemay was back in the care of her family physician who, when she became aware of Ms. Lemay’s pain and mobility problems, referred her “to the appropriate specialists for further investigation” (para. 69).

Since surgical repair of the spinal accessory had a good chance of success if undergone within the first 12-20 months, any delay caused by Dr. Peters’ lack of follow-up was “of no consequence” because “[t]he injury was discovered well within the window of potential successful surgical repair” (para. 70). Thus, the judge concluded the failure to follow up “in no way caused or contributed to the injury from which Ms. Lemay now suffers” (para. 70). [ 22 ] The third basis upon which Ms. Lemay sought to establish her claim related to what is commonly known as “informed consent”. Ms. Lemay alleged Dr.

Peters failed in his duty to fully disclose to her the risks of the surgery and other options that might have been open to her. This, she maintains, led her to consent to the procedure without being fully informed. [ 23 ] With respect to this allegation, the trial judge first addressed Ms. Lemay’s allegation she was not advised of alternative treatment, and in particular fine needle aspiration. The judge accepted Dr. Peters’ testimony, supported by a medical expert, that fine needle aspiration was not a viable diagnostic option. Ms. Lemay had herself questioned Dr.

Peters about this method and he had explained it was not a recommended option. In the circumstances, the judge concluded, Dr. Peters met his duty of disclosure. [ 24 ] On the question of the risks of injury to the spinal accessory nerve, the trial judge found Ms. Lemay was never informed of these. Dr. Peters had testified it was not his practice at that time to disclose and explain risks he considered “rare”, such as the risk of injury to the spinal accessory nerve. The judge rejected this approach. He accepted the opinion of Dr. John Guy, a medical expert Ms.

Lemay called to testify, that such a risk should be disclosed. In addition, the judge noted that, while the defence medical expert, Dr. Paul Dubois, had not provided an opinion exactly on point, he had nevertheless testified “it was his usual practice to disclose the risk of spinal accessory nerve injury prior to performing a biopsy in the posterior triangle of the neck” (para. 34).

The judge observed that while “ the risk of injury to the spinal accessory nerve in a posterior triangle biopsy is in the range of three to eight percent […] [t]he consequences of the injury are significant in that damage to the spinal accessory nerve results in partial paralysis resulting in atrophy of the trapezius muscle” (para. 38). On the strength of the evidence, the trial judge concluded: “in this case, the risk of injury to the spinal accessory nerve was a material risk that ought to have been disclosed to Ms.

Lemay prior to performance of the biopsy procedure” (para. 38). [ 25 ] Notwithstanding this conclusion, the judge did not find liability. The law with respect to informed consent requires proof not only of the nondisclosure of a material risk but also of a causal link between the nondisclosure and the resulting injury. The causal link would be established if Ms.

Lemay were able to satisfy the Court that a reasonable person in her position would not have consented to the treatment if she had been made aware of the particular risk. [ 26 ] On the question of the causal link, the trial judge found none had been established. The judge observed that Ms. Lemay had been quite concerned about the lumps in her neck and had sought referrals to three separate specialists. Her concern was exacerbated when she found the lump in her breast. Ms.

Lemay was willing to undergo the biopsy knowing it would result in scarring and that it would be done under general anesthetic, the risks of which she knew could result in serious consequences. The trial judge therefore concluded that a reasonable person in Ms. Lemay’s position “would have undergone the biopsy even if she had been informed of the risk of injury to the spinal accessory nerve” (para. 43). He reasoned as follows: There were no other alternative treatment options available for diagnosing the lymphoma suspected by Dr. Peters. Ms.

Lemay was very concerned and anxious about the possibility of cancer and this was perhaps more concerning to Ms. Lemay given that her sister had died from cancer at an early age. Ms. Lemay was aware of the serious risks of general anesthetic, including death, and was prepared to accept these risks. In her words, ‘Whether I had surgery or not I could die either from cancer or from general anesthetic’. Ms.

Lemay decided to proceed with the surgery despite the risks because she felt she had no other choice. [para. 43] [ 27 ] The judge therefore concluded that the causal link had not been established, stating he had “no hesitation in concluding that Ms. Lemay would have proceeded with the biopsy even if she had been informed of the three to eight percent risk of injury to the spinal accessory nerve and the consequences flowing therefrom” (para. 44).

[28] Although dismissing Ms. Lemay’s action, the judge provisionally assessed her damages at$701,538.66, which he broke down as follows: (

a) General damages $55,000.00(

b) Past loss of income 70,000.00(

c) Future loss of income 460,730.00(

d) Cost of future care 58,835.00(

e) Future loss of domestic services 53,349.00(

f) Medicare subrogation 2,406.00(

g) Special damages 1,218.66 III. Issues on appeal [29] Ms. Lemay appeals the dismissal of her action and the provisional assessment of damages. Hernotice of appeal lists eight grounds.

However, in her written and oral submissions, many of the grounds were combined in such a mannerthat the following questions were those on which the appeal was argued: 1) Did the trial judge err in his application of the standard of care with respect to informed consent? 2) Did the trial judge err in allocating the burden of proof and in determining causation with respect to the performance of the biopsy? 3) Did the trial judge err in his determination of the standard of proof and causation with respect to the post-operative care? 4) Did the trial judge err in his assessment of damages? [30] I will, in corresponding order, address the issues raised on appeal under headings reflecting eachof these questions.

IV. Analysis [31] As with every case on appeal, the trial decision must be assessed through the lens of thestandard of review that governs each question raised. It has been stated time and again that the role of the appellate court is not to retrythe case or to substitute its own findings for those of the trial judge.

These days, an overabundance of authority stands for the followingpropositions, which have now become trite law: (1) findings of law are to be assessed on a standard of correctness; (2) a finding of fact isentitled to deference and will only be reversed if the result of a palpable and overriding error; and, (3) findings of mixed fact and law,that is the application of a legal standard to a set of facts in order to arrive at an ultimate conclusion, are also entitled to deference and arereviewable on the same standard as findings of fact unless a legal error can be extricated. A.

Informed consent [32] No one takes issue with the legal principles that govern a medical malpractice claim founded onthe absence of informed consent. The trial judge applied the law as reformulated in Hopp v. Lepp, (SCC), [1980] 2S.C.R. 192 and Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880, and which this Court has periodically had occasion toapply: Mason v. Forgie (1986), (NB CA), 73 N.B.R. (2d) 193, [1986] N.B.J. No. 104 (C.A.) (QL), leave to appealdismissed [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); Besharav. Dysart (1998), (NB CA), 207 N.B.R. (2d) 14, [1998] N.B.J. No. 480 (C.A.) (QL); and Doiron v. Haché, 2005NBCA 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 tothe spinal accessory nerve was a material, unusual or special risk of a biopsy in the posterior triangle of the neck, in the sense that a

reasonable person in her position would have wanted to know the risk;

(2) Dr. Peters did not inform her of the risk; and, (3) a reasonableperson in her position would not have consented to the biopsy of that node had there been full disclosure of the risks. The answers to thefirst two questions are evidently findings of fact. As for the third, the test has been called a modified objective test of causation – that is a“blend of objectivity and subjectivity” – and, it too raises a question of fact: Beshara, at para. 16, and Doiron, at para. 94. [33] While Hopp and Reibl and most cases that have followed speak of the duty to inform of materialrisks, Ms.

Lemay submits the duty also extends to reasonable alternatives. She points to Ellen I. Picard & Gerald B. Robertson, LegalLiability of Doctors and Hospitals in Canada, 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 of disclosure is not confined to risks, but extends to other material information which a reasonablepatient would want to have. In particular, the patient must be informed of any available alternatives to the treatment being proposed, aswell as the material risks associated with those alternatives, if this is something which a reasonable person in the patient’s circumstanceswould want to know. The duty to disclose available alternatives is especially important where these are more conservative, and involvefewer risks, than the treatment which is being proposed.

It is incumbent on the physician to disclose sufficient information to enable thepatient to place the treatment options in a proper perspective and to assess their comparative risks and benefits. [pp. 150-152] [34] Support for those statements can be found in Zimmer v. Ringrose, [1981] A.J. No. 596 (C.A.)(QL), Van Dyke v. Grey Bruce Regional Health 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) andCory v. Bass, 2011 ABQB 360, [2011] A.J. No. 681 (QL). Dr.

Peters did not take issue with the extension of the duty from explainingthe material risks to also disclosing available options. This is understandable. The logic of requiring a physician to disclose not onlymaterial risks but also available alternatives is unassailable. A patient cannot truly give informed consent if not aware that less riskyprocedures might yield the same or a better result. [35] These are the principles the judge applied and no one alleges he made an error in law. What Ms.Lemay alleges is that the judge erred in his application of these principles.

Properly articulated, the ground of appeal should have allegeda palpable and overriding error in the judge’s conclusion, so as to reflect the standard of review to which we must subject the issue. [36] In his decision, the trial judge concluded that, even though the risk of injury to the spinalaccessory nerve in a posterior triangle biopsy is small (in the range of three to eight percent), the risk was nonetheless a material onebecause the consequences of any injury could be significant. The judge also concluded that Dr. Peters had not informed Ms. Lemay ofthe risk of such injury. Thus, the validity of Ms.

Lemay’s claim fell to be determined on the application of the modified objective test ofcausation: by answering the question whether a reasonable person in her position would have consented to the biopsy if the disclosure ofinformation had been adequate.

If so, as the judge found, the claim would have to be dismissed. [37] To make this determination, a trial judge has to consider “a wide range of the personalcircumstances of the plaintiff, and at the same time […] recognize that physicians should not be held responsible when the idiosyncraticbeliefs of their patients might have prompted unpredictable and unreasonable treatment decisions”: Arndt v. Smith, (SCC), [1997] 2 S.C.R. 539, [1997] S.C.J. No. 65 (QL), at para. 15. [38] In his written submission, Dr. Peters notes that the trial judge considered the following factorsin finding that causation was not proven:

a) The Appellant was aware that there were no other alternative treatment options available for diagnosing the lymphoma suspectedby Dr. Peters;

b) The Appellant was very concerned and anxious about the possibility of cancer and this was perhaps more concerning to theAppellant given that her sister had died from cancer at an early age;

c) The Appellant was aware of other serious risks of the biopsy, including death, and was prepared to accept such risks;

d) The Appellant stated that she had no choice but to accept the risks associated with the biopsy.

[ 39 ] This

summary is almost accurate. However, the trial judge did not find that Ms. Lemay “was aware that there were no alternative treatment options available for diagnosing the lymphoma suspected by Dr. Peters” but rather held “[t]here were no other alternative treatment options available for diagnosing the lymphoma suspected by Dr. Peters” (para. 43). [ 40 ] As I understand Ms.

Lemay’s argument on this aspect of her appeal, as viewed through the applicable analytical lens, she alleges the judge committed a palpable and overriding error in determining there were no alternative options available for diagnosing the lymphoma. She claims there were, and that these did not entail a risk of serious injury. Thus, she maintains that, if the alternatives had been disclosed to her, together with the risk of injury to the spinal accessory nerve that was possible with the contemplated biopsy, she would have had a choice and would not have agreed to the proposed biopsy.

It would follow that, on application of the modified objective test, a reasonable person in her position would not have consented to the biopsy in the posterior triangle of her neck, that is, in the high-risk area, if given a choice. Instead, that reasonable person would have opted for an alternative with a lower risk of serious injury. [ 41 ] It seems to me obvious that if there were viable diagnostic options that would have reduced or eliminated a risk of serious injury, such option should have been disclosed to Ms. Lemay. The judge found there were none.

The question is, therefore, whether this finding is the result 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 complete absence of evidence, or made in conflict with accepted evidence, or made on a misapprehension of evidence, and if the error is sufficiently significant to vitiate the finding of fact. [ 42 ] The testimony at trial raises three alternatives to a biopsy of the node in the posterior triangle: (1) fine needle aspiration; (2) choosing a different lymph node; and (3) subjecting the patient to a course of antibiotics. [ 43 ] Fine needle aspiration is the only “alternative option” to which the trial judge referred under the heading of his analysis on the question of informed consent.

Ms. Lemay testified she had raised this option with Dr. Peters. Ms. Lemay said Dr. Peters had informed her this option would not provide enough tissue for diagnostic purposes. On this point, the trial judge noted that Dr. Peters testified that the only way to confirm his tentative diagnosis of lymphoma was to perform a biopsy. In his view, fine needle aspiration would not have been effective. One of the medical experts who testified supported this view.

The expert explained that fine needle aspiration might provide diagnostic information for carcinoma, which is when cancer has metastasized to lymph nodes, but it is not a diagnostic procedure for lymphoma, which is when cancer develops in the lymph node itself. Dr. Dubois explained: “Hodgkin’s disease is difficult to diagnose with scatology, which is cells only, which is what you get with a needle biopsy”. Thus, there was evidentiary support for the trial judge’s finding of fact that fine needle aspiration was not a reasonable alternative in the circumstances.

It, therefore, cannot be said the judge’s conclusion on point was the result of a palpable and overriding error. Since fine needle aspiration was not a reasonable option, it follows Dr. Peters had no obligation to raise it as a viable alternative. When Ms. Lemay raised the question, Dr. Peters properly explained why it was not a viable option. [ 44 ] The question of choosing a different node was considered in the part of the trial decision that deals with the allegation of negligence in the performance of the biopsy. [ 45 ] On the basis of a consultation report Dr.

Peters prepared after his initial examination of Ms. Lemay, the trial judge did not accept there were enlarged nodes outside the posterior triangle. He made this conclusion despite an obvious error in the report where Dr. Peters refers to the region of the node as the “posterior axillary chain”, which is the armpit region. The judge’s factual finding also seems to have been anchored in an MRI conducted on November 9, 2005, which identified small scattered lymph nodes within the posterior triangle, but did not note any in the anterior area of the neck. Ms.

Lemay argues that therein lies a palpable and overriding error because “the MRI was limited to the cervical spine and brachial plexus” and “[i]ts mandate did not include the anterior area of the neck”. [ 46 ] Dr. Peters testified he chose the node in question because it was the biggest and easiest node. While Ms. Lemay suggested this painted a picture of a surgeon who was unconcerned about the increased risk of operating in the posterior triangle, the trial judge disagreed.

Based on the expert testimony, the judge concluded that the surgeon was in the best position to decide which node would provide enough tissue to enable a successful pathological analysis. There was ample evidentiary support for that conclusion. Both medical experts who testified said as much. Dr. Guy stated that “[t]he choosing of the node is a judgment call made by the surgeon, depending on what node is there”. Dr. Dubois was not as direct, but he categorically stated that, in choosing one lymph node over another, a surgeon looks for “the one that’s most easily accessible and - and that is – is enlarged”.

Considering the risk of injury to the spinal accessory nerve, if all nodes were equally enlarged, Dr. Dubois would not pick one in the posterior triangle area, “but, if that was the only significantly enlarged lymph node[,] that would most likely be the one [he] would pick”. He stated the standard would be to take the node that is the most abnormal and balance that with its location. [ 47 ] Describing the surgical procedure, Dr. Peters testified he would have chosen what he believed to

be “the most representative node”, that is, the largest one because it will give the pathologist more information with which to make an accurate diagnosis. In cross-examination, he stated that one of the considerations in the choice of the lymph node is the location of the spinal accessory nerve. He maintained that in the case of Ms. Lemay, “[t]here were no other nodes that [he] felt would give [him] the diagnosis that the pathologist needed”. [ 48 ] Evidently, the question of whether there were enlarged nodes in the anterior area of Ms.

Lemay’s neck that would have constituted an alternative to the surgical invasion of the posterior triangle is a question of fact. The evidence was contradictory. Dr. Peters’ consultation report dated June 1, 2005, does not indicate the presence of nodes in the anterior part of the neck, but a report by Dr. Pathrose dated December 1, 2004, reports three enlarged nodes: one in the posterior triangle and two in the area of the sternocleidomastoid, a muscle in the superficial layers of the anterior portion of the neck. Dr.

Paul Dubois testified it is likely that these nodes were enlarged at the time of the biopsy in June 2005, as they would not get smaller and go away. However, that testimony has to be read in context. Dr.

Dubois also stated that considering the location of those nodes “they would all equally – equally have a possibility of injury” because the spinal accessory nerve “traverses the upper part of the anterior triangle and goes through on a surface of the sternomastoid”. [ 49 ] In sum, there was an evidentiary basis for the judge’s conclusion that choosing another node was not a reasonable alternative in the circumstances.

While there are many reasons to stay away from a surgical invasion of the cervical posterior triangle, the surgeon must balance that with his or her judgment that not doing so will prevent him or her from gathering enough tissue to enable a proper pathological analysis and eventual diagnosis. As there was an evidentiary basis for the trial judge’s conclusion, deference is owed. [ 50 ] Since the trial judge accepted that Dr.

Peters believed “[t]here were no other nodes that [he] felt would give [him] the diagnosis that the pathologist needed”, it is inconceivable that the surgeon would have been expected to discuss with Ms. Lemay choosing a less risky node as an available alternative. Certainly neither of the medical experts who testified suggested this should have been done. [ 51 ] In sum, on the question of choosing another node, there was evidentiary support for the judge’s conclusion that “[t]here were no other alternative treatment options available for diagnosing the lymphoma suspected by Dr.

Peters” (para. 43). [ 52 ] The matter of subjecting Ms. Lemay to a course of antibiotics is an option that appears to have arisen only in the cross-examination of the medical expert Dr. Peters called to testify. It was not raised with either Dr. Peters nor with the medical expert retained by Ms. Lemay. Referring to an unidentified document, counsel for Ms. Lemay put a number of statements to Dr. Dubois and asked him whether or not he agreed with them.

Among these was whether the expert agreed with the proposition that “observation or fine needle aspiration biopsy for lymphadenopathy [e.g., abnormal lymph nodes] is reasonable”. He did. He also agreed that “[o]bservation or fine needle aspiration; however, knowing that persistent lymphadenopathy may represent relative pathology such as lymphoma is important”, but there was no exploration as to the meaning or significance of that statement. Ms. Lemay’s counsel suggested to Dr.

Dubois: “In the author’s experience indications for cervical lymph node biopsy include persistent lymphadenopathy after a trial of antibiotics”. However, he did not ask whether this practice was common in 2005, whether it was then a known reasonable alternative to an open biopsy when lymphoma is suspected, nor did he ask how this featured in the standard of care expected of a surgeon in 2005. He simply went on to ask if Dr. Dubois knew whether or not Ms. Lemay had been given a course of antibiotics. Dr. Dubois did not. [ 53 ] Ms.

Lemay’s counsel continued: “So the author here is suggesting that you do a trial of antibiotics, and then you – if you get an [inconclusive], fine needle aspirant, then perhaps you could do an open biopsy”. Dr. Dubois agreed but added that in this case Ms. Lemay would have had an open biopsy, explaining that she had seen other physicians who had dismissed the lymphadenopathy. Later in cross-examination, Dr.

Dubois explained that a course of antibiotics, coupled with fine needle aspiration that could have been done when the antibiotics were started, would have resulted in a delay of only “a couple of weeks”, would not have caused any damage to Ms. Lemay’s condition and would have “confirmed that there was lymphoma”. However, he insisted throughout that a biopsy would have nevertheless been necessary, presumably then to enable an accurate diagnosis. Later still, he agreed that while “giving a round of antibiotics or […] doing fine needle aspiration” may not succeed, one “could try that first”.

He conceded that this point is made in the literature because of the danger of performing a biopsy in the posterior triangle of the neck. He did agree that by taking this route, one would be “exercising the care that’s necessary”. Later still, Dr. Dubois agreed that surgery in the posterior triangle of the neck should not be done unless “absolutely essential” and that “whatever alternatives there are should be taken first”. [ 54 ] Always in cross-examination, Dr.

Dubois testified that although he explains to his patients the risk of a biopsy in the posterior triangle of the neck, once he has determined the surgery is necessary he does not discuss with them the alternative of a course of antibiotics and observation, coupled with fine needle aspiration. He adds that he might explain to a patient why fine needle aspiration is inappropriate in the circumstances. He agrees, however, that a course of antibiotics “can be done” and conceded

that a patient, aware of the risks of injury to the spinal accessory nerve and its consequences, would likely opt for the course of antibiotics first before agreeing to a biopsy in the posterior triangle of the neck. [ 55 ] In re-direct examination, Dr. Dubois explained that antibiotics would not treat lymphoma. He would have recommended neither a course of antibiotics nor fine needle aspiration for Ms. Lemay. He would have recommended a biopsy. [ 56 ] It is important to note that trying a course of antibiotics, coupled with fine needle aspiration, as an alternative to an open biopsy, was not explored with Dr.

Peters when he testified. There was simply no mention of it. Similarly, the issue was not broached with Dr. Guy, the medical expert whom Ms. Lemay called to testify as part of her case. [ 57 ] The failure to address the matter with Dr. Peters is somewhat critical. Dr. Peters was not asked whether he was aware that to subject a patient to a course of antibiotics and perform a fine needle biopsy was considered, by some, as a reasonable alternative to an open biopsy where the node to be excised is in the posterior triangle of the neck.

If he was not aware of this as an alternative, he cannot be faulted for not leaving this as an option for Ms. Lemay, unless it were shown that he should have been aware of it. In other words, the question is whether a reasonable surgeon in his position would have been aware of this as an available option for the diagnosis of lymphoma in 2005. On this point, the evidence is severely deficient. There is simply no evidence that in 2005 the surgical community considered this to be a reasonable option. [ 58 ] Dr.

Dubois was of the opinion that, in a case where lymphoma was suspected, there were no other options but to perform a biopsy. For his part, Dr. Guy was not critical of Dr. Peters’ decision to undertake a biopsy. His opinion related to the informed consent issue and the post-operative care of the patient.

In his report, he states that, in his opinion, the “dismissal of the possibility of fine needle aspiration of the lymph nodes in the neck was appropriate, in that, where there is a suspicion of lymphoma, adequate tissue material is necessary for appropriate diagnosis and staging”. [ 59 ] The only evidence regarding a course of antibiotics, coupled with fine needle aspiration, is Dr. Dubois’ agreement that this is referred to in the literature as a diagnostic measure in some instances. However, Dr. Dubois does not say whether this was a reasonable alternative that should have been put to a patient in 2005.

In fact, as stated above, he was of the view that, in the circumstances, there were no other options but to perform a biopsy. This seems logical, when one considers that other surgeons had already adopted a wait and see approach when consulted regarding the enlarged nodes. Evidently, none of them suspected lymphoma. [ 60 ] In short, there is very little information on the topic of a course of antibiotics, coupled with fine needle aspiration, other than the few questions posed to Dr.

Dubois mostly as statements made by an unknown author of an unknown publication on some unknown date. [ 61 ] In one of the defence exhibits, D-8, a 2002

article titled “Management of Iatrogenic Injury to the Spinal Accessory Nerve”, it is stated that “observation or in some cases a needle biopsy is all that is required”, but that is in instances where there is “[a]n isolated posterior triangle lymph node in a young healthy patient” because that is “usually the sequelae of a self- limited subclinical infection”. That was not the situation with Ms. Lemay, who did not have an isolated node, had previously consulted physicians for lymphadenopathy, and whom Dr.

Peters suspected might have lymphoma. [ 62 ] In the circumstances, although the trial judge does not address a course of antibiotics as an alternative treatment that should have been explored with Ms. Lemay, there is no evidentiary support for the proposition that this was a reasonable alternative in the circumstances of this case. There is no evidence that it was a medical standard at the time, there is no evidence Dr. Peters knew of the suggested approach and there is no evidence he should have been aware of it.

From the medical expert evidence adduced at trial, there were, at the time, no other alternatives but the biopsy to confirm the lymphoma Dr. Peters suspected. [ 63 ] Considering the above, I conclude the trial judge did not err in finding no fault in Dr. Peters’ omission to explore with Ms. Lemay alternatives to the lymph node biopsy. [ 64 ] The trial judge correctly concluded “the risk of injury to the spinal accessory nerve was a material risk that ought to have been disclosed to Ms. Lemay prior to the performance of the biopsy procedure” (para. 38). Upon finding that Dr.

Peters failed to disclose this risk in obtaining Ms. Lemay’s consent to the surgery, the real issue on the question of informed

consent became that of causation. [65] Here again, no one argues the judge erred in law in setting out the causation test on the issue ofinformed consent. The test is whether a reasonable person in Ms. Lemay’s position would not have consented to the treatment if the riskof there being a 3-8% chance of injury to the spinal accessory nerve and its consequences had been disclosed to her. Ms. Lemay’s groundof appeal does not focus on the result the judge reached based on the facts as he set them out. In other words, Ms.

Lemay does not arguethe judge erred in finding that a person in her position, if there had been no alternatives, would have consented to the biopsy even if fullyinformed of the 3-8% risk of injury. Rather, her grounds of appeal challenge the judge’s conclusion of fact on the issues addressedabove.

Since I have found the trial judge did not commit any palpable and overriding error in concluding that there were no otherreasonable alternatives to the biopsy of the node in question, his conclusion on the causation question is not really an issue in this appeal.Had it been, I would be forced to admit I am of the view that the judge’s conclusion in this respect was correct. [66] As the judge explained, Ms. Lemay was quite concerned and had a lot of anxiety about thelumps in her neck. She had sought referrals to three separate specialists who had not diagnosed any problem.

Later, she developed a lumpin her breast, “which, combined with the previous lumps in her neck and down her collarbone area, caused her great concern” (para. 40)and prompted her to return to her family doctor to discuss these concerns. Ms. Lemay’s concerns may have been exacerbated by the factshe had a sister who had died from cancer at an early age. Moreover, Ms. Lemay had other symptoms, such as night sweats. She wasaware she would be left with scars from the biopsy and that the procedure would be done under general anesthetic, with the consequentassociated risks.

In these circumstances, I can find no fault with the conclusion that “a reasonable person in the particular circumstancesof Ms. Lemay would have undergone the biopsy even if she had been informed of the risk of injury to the spinal accessory nerve” (para.43). B. Performance of the biopsy [67] The grounds of appeal to be considered under this heading were addressed in Ms. Lemay’swritten submission as raising the question of “causation and burden of proof as it related to a well known iatrogenic injury in theperformance of biopsy in the posterior triangle”. In essence, Ms.

Lemay argues “the Court erred in failing to consider an inference ofnegligence in the circumstances”. In support of her argument on this aspect of her appeal, Ms. Lemay refers to Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No. 73 (QL). That was a case dealing with the issue of causation.

The SupremeCourt concluded that while the burden of proving a causal link between a plaintiff’s injuries and a defendant’s negligence rests with theplaintiff, “[i]t is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff’s theory of causation”(para. 34) and that, “in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawnalthough positive or scientific proof of causation has not been adduced” (para. 33). [68] Ms. Lemay points to what she claims are a number of failures on Dr.

Peters’ part, which shemaintains constitute “affirmative evidence” that justified “the drawing of an inference of causation”. She lists these as follows: (

i) Failure to document properly – both the consult and the operative report; (ii) No referral for lymph node from Dr. MacDougall; (iii) Failure to explore the various nodes; (iv) Failure to map the SAN [spinal accessory nerve]; (

v) Failure to look for and identify structures during the pre-op and surgery; (vi) Failure to disclose the danger inherent in operating in the posterior triangle; (vii) Failure to seek out nodes in the anterior cervical area;

(viii) Failure to follow up when his receptionist informed him of Lise Lemay’s call; (ix) Failure to discuss alternative treatments; (

x) Failure to correct errors in the medical reports; (xi) Failure to communicate the information in the pathology report to either Lise Lemay or Dr. MacDougall; (xii) Always excising the biggest and easiest [node] without regard to structures in the neck; (xiii) The only explanations anywhere from Dr. Peters has been a variation of “I wasn’t as careful as I might have been”; (xiv) Failure during the operation to look for and identify structures – no record of having done so was made by Dr. Peters and Dr. Guy says this is the most likely cause of the injury. [ 69 ] Ms.

Lemay concludes her written argument on this part of her appeal by referring to Sopinka J.’s statement in Snell that “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary” (para. 30), and says that she has produced “a great deal of affirmative evidence, but the Court has refused to draw any inference, despite a complete absence of evidence to the contrary”. [ 70 ] With respect, this argument mixes apples with oranges. As observed above, Snell was a causation case.

This case was not, except as it related to the question of informed consent. The trial judge had no difficulty in concluding that “the evidence establishes on a balance of probabilities that Ms. Lemay’s injuries arise from surgical or iatrogenic injury to the spinal accessory nerve” (para. 23). In other words, the biopsy caused the injury. In light of that finding, and as no one suggested Dr. Peters did not have a duty of care, this case was one that fell to be determined not on the question of causation, but on the question of whether Dr.

Peters’ performance of the biopsy fell below the appropriate standard of care. [ 71 ] On the question of standard of care, the trial judge considered many of the alleged failings to which Ms. Lemay points in the list set out above as well as her argument that these “paint a picture of a surgeon who was either unaware of or unconcerned about the increased risk of operating in the posterior triangle” (para. 46). The judge, however, disagreed with such a conclusion and refused to draw the inferences Ms. Lemay invited him to draw. For example, he did not agree that the failure to disclose the risk to Ms.

Lemay prior to the biopsy supported an inference that Dr. Peters was not aware of the risk of injury to the spinal accessory nerve, concluding instead that it “portrays a surgeon who is aware of the risk but did not consider it significant enough to warrant disclosure” (para. 47). [ 72 ] Like findings of fact, inferences of fact are also reviewable on the palpable and overriding standard. Ms. Lemay has not identified any such error. Her point on appeal is that the judge should have drawn inferences where he refused to do so. With respect, this is not a valid approach to appellate review.

The judge made determinations of fact that are supported by the evidence. It is incumbent on an appellant who wishes to challenge these facts to point to a readily identifiable error and satisfy the Court of Appeal that such an error had an overriding consequence on the result. [ 73 ] In the present case, none of the medical experts who testified stated that “Dr. Peters failed to meet the standard of care in either the selection of the node or in the performance of the biopsy” (para. 56). One, Dr. Dubois, opined that the description of the surgery provided by Dr.

Peters fell “within the standard of care” (para. 56). Dr. Dubois had agreed that “injury to the nerve can occur even if the technique was completely appropriate”. In light of this, the judge was quite justified in determining that a breach of the standard of care had not been shown, and this is so despite the charting errors and other failings Ms. Lemay had been able to demonstrate. In the absence of a palpable and overriding error, which has not been shown, the judge’s conclusion in this regard is not within reach of appellate intervention.

C. Post-operative care [ 74 ] Under the heading of this ground of appeal, Ms. Lemay argues that Dr. Peters’ overall conduct “showed a general carelessness and lack of sensitivity”. In support of this statement, Ms. Lemay points again to some of the alleged failings listed above. In oral arguments on appeal, Ms. Lemay’s counsel pointed to these and in particular the fact that Dr. Peters had not arranged any post-surgical follow-up. Even after Ms. Lemay had called Dr. Peters’ office to report problems with her arm, no follow-up was arranged. In addition, there had been testimony from Ms.

Lemay’s family physician to the effect she had had a chance encounter with Dr. Peters in October 2005, and had informed him Ms. Lemay was having problems with her arm after the biopsy. Still Dr. Peters did not arrange for any follow-up. Even when he received a copy of a report from a specialist advising that Ms. Lemay was waiting to undergo an MRI to determine the cause of her left shoulder and trapezius muscle weakness, and opining her condition was likely related to her surgery, Dr. Peters still did not arrange any follow-up. [ 75 ] It is not difficult to dispose of this ground of appeal.

The trial judge found that Dr. Peters’ conduct, even after being advised Ms. Lemay had an issue with her arm, fell within the standard of care. He reached this conclusion based on Dr. Dubois’ testimony and rejected Dr. Guy’s opinion on point. This is a finding for which appellate intervention could only be justified on the palpable and overriding standard. On that point, Ms. Lemay points to an admission on cross-examination where Dr. Dubois stated that if Dr.

Peters “was advised that the patient was – had a complaint [of distress, arm bad, pain, shoulders] it’s a breach of the standard of care if there’s not some type of follow-up arranged”. She says this is incompatible with the judge’s conclusion that Dr. Dubois’ expert opinion was that “Dr. Peters’ post-operative care, in particular the handling of Ms. Lemay’s telephone complaint, fell within the standard of care” (para. 64). [ 76 ] Admittedly, Dr. Dubois appears to have contradicted himself if one looks at his answer in cross- examination as set out above.

In his direct examination, he had testified that it was not necessary for Dr. Peters to have arranged some kind of follow-up provided the patient had been told to call back if the issue did not resolve within a few days. [ 77 ] Much of the confusion might be attributed to the discrepancy in Ms. Lemay’s testimony at the examination for discovery and that at trial. At trial, she testified she told Dr.

Peters’ receptionist she had “issues with” her arm, whereas the question that led him to provide an answer that appears to contradict his direct examination was more detailed than someone reporting “issues” with her arm. It asked whether “there was every reason for Dr. Peters’ receptionist to advise him that this lady was in some distress, arm bad, pain, shoulders” and whether the failure to follow up would have resulted in a failure to meet the appropriate standard of care. [ 78 ] Frankly, there was evidence from Dr. Dubois supporting the judge’s factual finding that Dr.

Peters had met the appropriate standard of care and there was testimony from him, in cross-examination, that would have supported a finding Dr. Peters had not. The judge evidently chose to accept the testimony from the direct examination. In my view, a judge who makes a finding of fact anchored on direct examination he accepts, choosing to disregard an apparent conflict with testimony on cross- examination for the principled reason that the factual basis upon which the question was asked was not borne out by the evidentiary record, does not commit any palpable error. [ 79 ] In any event, even if Ms.

Lemay had been able to demonstrate a palpable and overriding error on the question of the standard of care relating to a lack of proper follow-up, the analysis does not stop there. She also had to show that the failure to follow up caused her damages. The trial judge addressed that point. Stating that in the event he was found to have been wrong on the question of the standard of care relating to the absence of any follow-up, he stated he was satisfied any breach of the standard of care did not cause or contribute to any damages. The judge accepted that “as a thoracic surgeon, if [Dr.

Peters] was faced with a nerve injury there [were] no surgical options he could offer” (para. 68). This conclusion is supported not only by the testimony of Dr. Peters the judge accepted, but also by the opinions of Dr. Dubois and Dr. Guy. Moreover, as the judge points out, “two weeks following the biopsy, Ms. Lemay had gone to see her family physician” and her “care was no longer in the hands of Dr. Peters” (para. 69). When Ms. Lemay’s family physician became aware of the pain and mobility problems with her patient’s arm, “she referred Ms.

Lemay to the appropriate specialists for further investigation” and “[b]y December 2005 Ms. Lemay’s nerve injury was fully understood by her treating physicians” (para. 69). [ 80 ] The judge noted that expert testimony established that “surgical repair of the spinal accessory nerve has a good chance of success if undergone within the first year” to 20 months post-injury (para.70). The judge concluded that “[t]he injury was discovered well within the window of potential successful surgical repair” and that, therefore, the failure of Dr. Peters to see Ms. Lemay after either the phone call, his conversation with Ms.

Lemay’s family physician or his receipt of the specialist’s letter, “in no way caused or contributed to the injury from which Ms. Lemay now suffers” (para. 70). As noted above, there was ample evidence supporting this view. As a result, it cannot be said that this finding is the result of a palpable and overriding error, which is the standard that would have to be met before there could be appellate intervention.

D. Damages [ 81 ] Where I reach the conclusion that the dismissal of Ms. Lemay’s action is not the result of any error that would justify appellate intervention, there is no need for me to address the ground of appeal relating to the provisional assessment of damages. V. Disposition [ 82 ] For these reasons, with compassion yielding to the application of the governing legal principles, I would dismiss Ms. Lemay’s appeal and award costs as determined by application of note (1) under Tariff “A” of Rule 59. ___________________________ J.C. MARC RICHARD, J.A. ______________________________ J.T. ROBERTSON, J.A. ______________________________ BRADLEY V. GREEN, J.A.