Docket: 1552 Mark Ronald Baert, Lisa Marie Dawson by her Litigation Guardian Mark Ronald Baert, Jameson Jack Baert by his Litigation Guardian Mark Ronald Baert v. Devin Frank Baert by his Litigation Guardian Mark Ronald Baert, 2011 SKCA 21

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 21 Date: 20110218 Between: Docket: 1552 Mark Ronald Baert, Lisa Marie Dawson by her Litigation Guardian Mark Ronald Baert, Jameson Jack Baert by his Litigation Guardian Mark Ronald Baert and Devin Frank Baert by his Litigation Guardian Mark Ronald Baert Appellants (Plaintiffs) - and - Kenneth Graham Respondent (Defendant) - and - Prairie North Regional Health Authority (formerly Lloydminster District Health Board), Marilyn Mann, Ann Leer and Ruth Wood Intervenors (Non-Party) Coram: Cameron, Vancise and Smith JJ.A. Counsel:

David Risling and Sandra Weber for the Appellants Christine Glazer, Q.C. and Michelle Ouellette, Q.C. for the Respondent Gary Zabos, Q.C. for the Intervenors Appeal: From: Q.B.G. No. 574 of 1999, J.C. Battleford Heard: April 7-8, 2010 Disposition: Dismissed Written Reasons: February 18, 2011 By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Smith Vancise J.A. I. Introduction [ 1 ] This is a case with difficult facts. Ms.

Dawson underwent laparoscopic tubal ligation surgery, a comparatively simple surgical procedure attended by a minimal risk, and suffered a catastrophic result. During the laparoscopic tubal ligation which was performed by Dr. Graham, Ms. Dawson (also referred to as Ms. Baert in the excerpts from the transcript) suffered a two millimetre perforation to her small bowel which is a recognized risk of such an operation. As is common, the bowel injury was not detected initially and Ms. Dawson was discharged from the hospital.

She later became very ill but did not return to the hospital for nearly 48 hours. [ 2 ] By then, she was suffering from septic shock resulting in brain injury and the amputation of portions of all four limbs. [ 3 ] As a result of the harm suffered by her, Ms. Dawson and Mark Ronald Baert, her partner and father of their children, sued Dr. Graham, as well as the Prairie North Regional Health Authority and the attending nurses Marilyn Mann, Ann Leer and Ruth Wood alleging that Dr. Graham did not obtain Ms.

Dawson’s informed consent, was negligent in the performance of the surgery and that he and the Health Authority and the nurses negligently failed to properly assure her post-operative care. [ 4 ] Prior to the trial, Ms Dawson and Mr . Baert settled their claim against the Prairie North Regional Health Authority and the three attending nurses, the terms of which were set out in a proportionate share settlement agreement dated August 17, 2007. They then discontinued the action against these parties. In the result, only Dr. Graham remained as a defendant in the action.

The appellants alleged he was negligent in that he breached his duty of care to Ms . Dawson by failing to: (1) obtain her inform ed consent to the surgery; (2) conduct the surgery with the care and skill required of him; and (3) attend to her post-operative care in a manner expected of him. [ 5 ] The case against Dr. Graham was tried by judge and jury. The jury found Dr. Graham had obtained Ms. Dawson’s informed consent and that he had met the standard of care required of him as a gynaecologist, both in connection with the surgery and the post- operative care.

As a result, the jury delivered a verdict and rejected the appellants’ claim. [ 6 ] Ms. Dawson and Mr. Baert then brought this appeal, asking this Court to set aside the verdict and order a new trial on the grounds, in general, that the trial judge erred in his instructions to the jury, that he erred in declining to admit certain evidence, and that the verdict is unreasonable. [ 7 ] The issues of liability and damages were severed on appeal and the appeal dealt only with the issue of liability.

II. Facts [ 8 ] A good starting point is the agreed statement of facts submitted by the parties: 1. This action arises out of injuries suffered by the Plaintiff, Lisa Marie Dawson (“Ms. Baert”), after a tubal ligation surgery conducted by the Defendant, Dr. Kenneth Graham (“Dr. Graham”) on July 14, 1999, at the Lloydminster Hospital in Saskatchewan. 2. Ms. Baert was born on March 6, 1978. She was raised by her mother, Christine Dawson, and her step-father, Harold Larson. She has two younger half siblings, Rob Larson and Nicole Larson. Ms.

Baert remained at home with her parents in Kitscoty, Alberta until 1994 when, at the age of 16, she moved out of her family home. 3. Ms. Baert achieved a grade 10 level of education. 4. Ms. Baert moved to Lloydminster, Saskatchewan in 1994 when she was 16. She met the Plaintiff, Mark Ronald Baert (“Mr. Baert”) in February of 1995 and they started dating in May of that year. In November 1995, the Baerts moved in together in Lloydminster. 5. The Baerts’ first child, Jameson Jack Baert, was born on August 21, 1996. The pregnancy and delivery were uneventful. 6.

Devin Frank Baert, the Baerts’ second child, was born on May 6, 1999. Again, the pregnancy and delivery were uneventful. 7. Between November 1995 and February, 1999, the Baerts moved from Lloydminster to Edmonton (in December 1996) to North Battleford (in July 1997) to Lloydminster (in February 1998) to Saskatoon (in May 1998) and back to Lloydminster (in February 1999). 8. During Ms. Baert’s pregnancy with Devin, the Baerts decided that their family would be complete with two children. Ms. Baert consulted her family physician, Dr.

Punt, on June 9, 1999 regarding having a tubal ligation procedure. [Exhibit J-1, page 022] 9. Dr. Punt referred Ms. Baert to Dr. Graham, an obstetrician and gynecologist. A referral letter dated June 10, 1999 was sent by Dr. Punt to Dr. Graham. [Exhibit J-1, page 029] 10. On June 21, 1999, Ms. Baert first met with Dr. Graham. She was not previously known to Dr. Graham. Dr. Graham conducted a physical examination and at the conclusion of the meeting, Ms. Baert signed a “Consent to Operation and Anesthesia” form for a laparoscopic tubal occlusion which was also signed by Dr. Graham. [Exhibit J-1, page 007] 11. Dr.

Graham wrote a letter of consultation to Dr. Punt dated June 21, 1999 [Exhibit J-1, pages 002 and 003] and requested a surgical booking at the Lloydminster Hospital. The surgery was scheduled for July 14, 1999, as a laparoscopic tubal ligation. 12. On June 30, 1999, Ms. Baert went back to her family physician’s office and saw a colleague of her family physician. At that time, the physician prescribed Zoloft, an antidepressant [Exhibit J-1, page 022]. 13. On July 9, 1999, Ms. Baert attended the pre-anesthetic clinic at the Lloydminster Hospital. At the clinic, Ms.

Baert was seen by a licensed practical nurse, Ann Leer, regarding the laparoscopic procedure, and underwent an anesthetic consultation. [Exhibit J-1, pages 039-41 and 044] 14. On the morning of July 14, 1999, Ms. Baert attended the Lloydminster Hospital for the surgery, which was scheduled for 9:00 a.m. She was admitted to the day surgery ward by registered nurse, Marilyn Mann. 15. The surgery involves inserting a needle, called a verres needle, into the abdominal cavity through a small incision just below the umbilicus (belly button).

Carbon dioxide is then pumped through the needle in order to inflate the abdominal cavity and provide space for the insertion of instruments to perform the procedure. Inflation of the abdominal cavity is known as creating a pneumoperitoneum. Once this step is taken, a trochar (tubular casing) is inserted, through which an eyepiece is placed in order for the surgeon to look into the abdominal cavity. A second trochar is then inserted by way of a second small incision in the symphysis pubis area (pubic hair line). The surgical instruments are introduced via the second trochar.

The procedure involves the placement of a filchie clip on each of the two fallopian tubes to prevent pregnancy. Once the clips are in place, the instruments are removed and the two small incisions are sutured. 16. Ms. Baert’s surgery was the third of four scheduled surgeries for Dr. Graham on the morning of July 14, 1999. The surgeries were scheduled 30 minutes apart. [Exhibit J-1, page 099] Ms. Baert’s surgery was scheduled for 0900h and she was taken to the operating room from the day surgery ward at 0845h. Following the surgery, Ms. Baert was in the recovery room from 0933h to 1035h.

She received a Voltaren suppository in the recovery room. [Exhibit J-1, page 048] 17. Ms. Baert was taken to the day surgery unit from the recovery room at 1035h and was discharged at 1457h (2:57 p.m.) on July 14, 1999, as noted in the Record of Care. [Exhibit J-1, page 0042] On discharge, Ms. Baert was given a written information sheet entitled “Laparoscopic Procedures”, which she signed. [Exhibit J-1, pages 052 and 053] 18. Ms. Baert left the hospital with Mr. Baert and they returned home. 19. On July 16, 1999, at approximately 0735h, Mr. Baert called for an ambulance. Ms. Baert was taken by ambulance to the

Lloydminster Hospital, where she underwent resuscitation by the casualty physician, Dr. P. Naude. 20. A provisional diagnosis of septic shock with probable bowel injury was made and an immediate surgical consultation was arranged with the general surgeon, Dr. Hiscock. At 0900h, Dr. Hiscock conducted emergency surgery, revealing the presence of a 2 millimetre puncture to the small bowel, which was repaired by partial bowel resection. During the course of Dr. Hiscock’s surgery, Ms. Baert had two cardiac arrests, requiring CPR to resuscitate her. [Exhibit J-1, pages 069 and 070] 21.

Following the laparotomy and partial bowel resection, arrangements were made to transfer Ms. Baert by air ambulance to the Royal Alexandra Hospital in Edmonton, Alberta, for further management. At the Royal Alexandra Hospital, Ms. Baert underwent multiple procedures and surgeries. She suffered post-ischemic necrosis of her hands and feet, requiring the amputation of her hands at the wrists and her legs below the knees. In addition to the loss of her limbs, Ms. Baert suffered brain injury and an “ICU neuropathy/myopathy” which left her with a flaccid quadriplegia. 22. Ms.

Baert remained in the intensive care unit of the Royal Alexandra Hospital from July 17, 1999 until March 1, 2000 when she was transferred to the Glenrose Rehabilitation Hospital in Edmonton. She was transferred back to the Royal Alexandra Hospital on March 2, 2000 for management of suspected urinary tract infection and she remained there until March 16, 2000 when she was transferred back to the Glenrose for a period of multi-disciplinary rehabilitation. 23. Ms. Baert stayed at the Glenrose Hospital until June 14, 2000. On June 14, 2000, she was transferred to the Dr.

Cooke Extended Care Centre in Lloydminster, Alberta for long term care. At that time, Mr. Baert and the children resided in a home in Lloydminster which was renovated to allow wheelchair accessibility and to facilitate Ms. Baert’s personal care. 24. On October 29, 2001, Ms. Baert was transferred from the Dr. Cooke Centre to the Parkridge Long Term Care Centre in Saskatoon, where she continues to reside at this time. III. Verdict of the Jury [ 9 ] The jury delivered its verdict by way of the following responses to the following questions: 1. (

a) Did Dr. Graham obtain Lisa Baert’s informed consent to the tubal ligation surgery? Yes: “yes” or No: If the answer to question 1(

a) is “No”, proceed to questions 1(

b) and 1(c). If the answer to question 1(

a) is “Yes”, proceed to question 2(a). (

b) If the answer to question 1(

a) is “No”, state in what respect Lisa Baert’s consent was not informed: (

c) If the answer to question 1(

a) is “No”, would a reasonable person in Lisa Baert’s circumstances have proceeded with the tubal ligation surgery, if she had been properly informed? Yes: or No: Proceed to question 2(a). 2. (

a) Did Dr. Graham meet the standard of care, as would reasonably be expected of a gynecologist, in performing the surgery on Lisa Baert? Yes: “yes” or No: If the answer to question 2(

a) is “No”, proceed to questions 2(

b) and 2(c). If the answer to question 2(

a) is “Yes”, proceed to question 3(a).

(

b) If the answer to question 2(

a) is “No”, state how it was that Dr. Graham failed to meet the expected standard of care: (

c) If the answer to question 2(

a) is “No”, did the failure to meet the expected standard of care cause, or contribute to, the injuriesexperienced by Lisa Baert? Yes: or No: Proceed to question 3(a). 3. (

a) Did Dr. Graham meet the standard of care, as would reasonably be expected of a gynecologist, in post-operativecare for Lisa Baert? Yes: “yes” or No: If the answer to question 3(

a) is “No”, proceed to questions 3(

b) and 3(c). If the answer to question 3(

a) is “Yes”, see the note following question 3(c). (b) … (c) … Proceed to question 4(

a) if: - the answer to question 1(

c) is “No”, or - the answer to question 2© is “Yes”, or - the answer to question 3(

c) is “Yes”. Otherwise, do not answer any more questions. IV. Grounds of Appeal [10] The appellants’ notice of appeal sets out some 30 grounds in which they contend the trial judge erred in instructing the jury withrespect to each of the questions that were put to the jury. In addition, the appellants contend that the trial judge erred in rejecting certainevidence, including similar fact evidence bearing upon question 1(a), and rebuttal evidence bearing upon question 1(c).

The appellantsalso contend that, in any event, the verdict is unreasonable in respect to each of the answers to each of the questions the jury was left todecide. [11] We note that counsel were invited by the trial judge to comment on the charge to the jury but declined to do so. Suffice it to saythat such failure to object is not fatal, but it weighs heavily against the complaining party. R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R.523. V. Standard of Review [12] The standard of review applicable to the verdict of a jury was set out by the Supreme Court of Canada in McKinley v.

BC Tel, 2001SCC 38 , [2001] 2 S.C.R. 161 at paras. 59-60: [59] …This Court has repeatedly used a test of “reasonableness” when considering whether to set aside a jury’s verdict. InVancouver-Fraser Park District, supra at p. 839, de Grandpré J. held that while jury verdicts must be treated with considerable respectand be accorded great weight, they should not be regarded with awe. Rather, where it is found that the evidence “did not permit a juryacting judicially to reach the conclusion” that it did, an appellate court is entitled to set it aside. [60] Similarly, in McCannell v.

McLean, (SCC), [1937] S.C.R. 341, Duff C.J. stated the reasonableness test as followsat p. 343:

[T]he verdict of a jury will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as tosatisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it. In addition, an appellate court that finds there was “no evidence” supporting a particular verdict has “the right and the duty” to set asidethat verdict (see Gray Coach Lines Ltd v. Payne, (SCC), [1945] S.C.R. 614, at p. 618).

Although these two tests aredistinct, in neither case may the appellate court set aside a verdict on “mere doubts [it] may entertain” or on its “reaching on the readingof the evidence a conclusion different from that the jury reached” (see Scotland v. Canadian Cartridge Co. (1919), (SCC), 59 S.C.R. 471, at p. 477, per Davies C.J.). See also the decision of this Court in Leuschen v. Loeffelholz, (SK CA), [1993] 3 W.W.R. 7 (Sask. C.A.) whereinWakeling J.A. observed, on behalf of the Court, that: [2] … The words of Duff C.J. in McLean v.

McCannell are still frequently referred to as accurately stating the role this Court shouldadopt when reviewing a jury decision: The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as againstthe weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as awhole and acting judicially could have reached it. [Citations omitted] [13] The appropriate standard of review of a jury charge was articulated by this Court in R. v.

Brass, 2007 SKCA 94, [2007] 11 W.W.R.191 where Jackson J.A., speaking on behalf of the Court, stated: [3] The appellate role in reviewing a jury charge is encapsulated by R. v. Jacquard. In Jacquard, the Supreme Court urged appellatecourts to use a functional approach to avoid the danger of setting an impossible standard for trial judges. Appellate review is to be anassessment to determine whether the accused, based on a review of the whole charge, has had a fair trial and is not an examination tofind minute error.

As has been frequently said, the purpose of appellate review is to ensure that juries are properly, not perfectlyinstructed. [Citations omitted] [14] It is also necessary to have regard for the standard of review applicable to the trial judge’s management of the trial and the standardof review that applies to evidentiary rulings regarding similar fact evidence. This latter derives in large measure from R. v. Arp, (SCC), [1998] 3 S.C.R. 339 and R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717. This standard of review issummarized by Doherty J.A. in R. v. Harvey (2001), (ON CA), 160 C.C.C. (3d) 52 (Ont.

C.A.) affirmed 2002 SCC80, [2002] 4 S.C.R. 311. He stated that a ruling on the admissibility of similar fact evidence requires the trial judge to weigh theevidence tendered for the purpose of evaluating its probative value against its prejudicial effect. He then said this at paras. 42 and 43: [42] …The determination of probative value is based on the trial judge’s individual impression of the evidence and is, to some degreeat least, an intuitive assessment that reflects that individual judge’s experience and sense of what is fair.

The test for the admissibility ofsimilar fact evidence inevitably means that in some cases different judges could come to different conclusions with respect to theadmissibility of the same similar fact evidence. [43] The fact that the admissibility of similar fact evidence turns on assessments as to the probative value of the evidence and itsprejudicial effect, explains the high degree of deference which appellant courts must give to trial judges’ rulings on the admissibility ofsimilar fact evidence. … [15] Given the nature of such rulings, which require trial judges to weigh the evidence and balance its probative value against itsprejudicial effect, the standard of appellate review requires “a high degree of deference” to the trial judge’s ruling, accompanied by anassessment of the “reasonableness” of the ruling.

This is so irrespective of whether the similar fact evidence is tendered in proof of a factin issue or tendered in rebuttal. [16] Finally, when dealing with the issue of the standard of review applicable to a trial judge’s ruling that a jury can determine whetherstandard practice is in and of itself negligent as opposed to being bound by expert opinion on what constitutes negligence is a question oflaw and, therefore, reviewable on a standard of correctness. [17] Before leaving this subject, it is worth noting that it is not every misdirection or improper rejection of evidence that will result in anew trial.

This Court is empowered by Rule 58 of The Court of Appeal Rules to refuse to order a new trial on the ground of misdirectionor rejection of evidence if, in the opinion of the Court, “no substantial wrong or miscarriage of justice has occurred.” [18] With that, I now turn to the substantive issues raised on this appeal regarding the trial judge’s charge to the jury.

I should note atthe outset that the approach taken by the appellants on this appeal was to selectively pick bits of evidence to support their contention thatthe trial judge did not adequately or properly instruct the jury and in effect to ask us to retry the case. As noted, this is an appeal and nota re-trial. It is an assessment as to whether the jury was properly instructed – not perfectly instructed.

VI. Informed Consent [ 19 ] The appellants contended at trial that Dr. Graham had failed to properly explain the risks of the surgery to Ms. Dawson and argued that, if she had been properly informed of the risks, she would not have proceeded with the surgery. They alleged that Dr. Graham breached the standard of care reasonably expected of a gynaecologist and that such failure caused or contributed to the injuries suffered by Ms.

Dawson. [ 20 ] In instructing the jury on this issue, the trial judge carefully explained the three elements necessary to found a claim based on negligence; that is, (1) that a duty of care is owed to the plaintiff (Ms. Dawson) by the defendant (Dr. Graham); (2) that there was a breach of that duty; and (3) that Ms. Dawson suffered the injury as a result of Dr. Graham’s conduct. [ 21 ] The trial judge then instructed the jury on the issue of informed consent in these terms: In this case, in broad terms, the plaintiffs claim that Dr. Graham was negligent in one or two or three of following ways.

First, in operating on Lisa Baert without her informed consent. Second, in performing the surgery. And third, in his care for Ms. Baert following the surgery, post-operatively. … As to whether Dr. Graham properly informed Ms. Baert of the risks, the plaintiffs have the burden of providing some evidence that Dr. Graham did not properly inform Ms. Baert. Providing some evidence is less of an onus than proving on a balance of probabilities. If you conclude that the plaintiffs have provided some evidence that Dr. Graham did not properly inform Ms. Baert, then the burden of proof will shift to Dr. Graham.

He then would have the burden of proving on a balance of probabilities that Ms. Baert was properly informed. For the other assertions by the plaintiffs, the plaintiffs have the regular burden of proving the assertions on a balance of probabilities. Those other assertions are that a reasonable person in Ms. Baert’s place would not have consented to the surgery if she had been properly informed. That Dr. Graham breached the standard of care that would reasonably be expected of a gynecologist in relation to his performing the surgery on Lisa Baert or in relation to his care for her after the surgery. That Dr.

Graham’s breach of the standard of care caused or contributed to Ms. Baert’s injuries. That Dr. Graham’s breach also caused loss to Mark Baert, Jameson Baert and Devin Baert. And that Lisa, Mark, Jameson and Devin Baert each should be awarded damages in amounts identified by the plaintiffs to compensate them for the loss that they suffered. Those are points alleged by the plaintiffs and so those are points on which the plaintiffs have the regular burden of proving on the balance of probabilities. As to Dr. Graham, as you know, his response in this action is that he did obtain Ms.

Baert’s informed consent and in any event, a reasonable person in Ms. Baert’s place would have consented. … … I’ve told you the three broad categories of the plaintiffs’ claim of negligence against Dr. Graham. The first of these is the claim that Dr. Graham was negligent in failing to inform Lisa Baert sufficiently about possible risks of the procedure. Dr. Graham was under a duty to inform Ms. Baert about possible risks. You must decide, following the principles of law that I will give you, whether he discharged this duty. There are two parts to this issue. The first

part is whether Dr. Graham properly informed Ms. Baert before she provided her consent. A patient must be told of significant risks that pose a real threat to her life, health or comfort. Obviously any risk that is probable must be explained if the potential result of its occurrence would be serious. In other words, a physician must explain risks that a reasonable patient would likely find significant in deciding whether to undergo the surgery. In making this decision, the likelihood of the risk occurring and its seriousness are relevant factors.

Therefore, a risk that will not likely occur must nevertheless be explained to the patient if it would have serious effects. In considering what risks should have been mentioned, you’ll need to balance the seriousness of the potential risk and the likelihood of it occurring. In

summary, you must decide on the basis of the evidence whether Dr. Graham, given Ms. Baert’s circumstances and personal characteristics, made a fair and reasonable explanation of possible risks of the procedure. Note that the physician is not required to explain risks that are extremely remote, except where the potential consequences to the patient are serious.

You must consider whether in this case the risk of serious consequences was so remote that it was unnecessary to discuss it in all of the circumstances. [Trial, Charge to the Jury, line 13 at p. 6660 to line 14 at p. 6667] [ 22 ] He then continued: In deciding what risks should have been described to Ms. Baert, evidence from medical experts of their custom or general practice is one factor to be considered, but it is not conclusive. You may conclude that the custom or general practice is not good enough. You must determine what a reasonable patient in the position of Ms.

Baert would consider to be material risks or special or unusual risks, risks that she would want to receive information about. You must weigh all of the evidence about Ms. Baert’s situation and the risks that were disclosed to her and decide whether the information given to her by Dr. Graham in these circumstances was sufficient. I’ve told you that on this particular issue only the plaintiffs have a modified burden of proof. They must provide some evidence

that Dr. Graham did not properly inform Ms. Baert. If they have not provided some evidence of that, then they have not met the onus ofproving this issue against Dr. Graham. If they have provided some evidence, then the onus of proof, as I’ve said, will shift to Dr.Graham and he’ll bear the burden of proof on the balance of probabilities that he did properly inform Ms. Baert. [Trial, Charge to the Jury, line 25 at p. 6667 to line 22 at p. 6668] [23] The trial judge then instructed the jury on the requirements for the appellants to prove causation on the balance of probabilities, thatis, that a person in Ms.

Dawson’s position would have declined the surgery had she been properly informed of the risk. [24] It should be noted that Dr. Graham testified that he had obtained Ms. Dawson’s informed consent and, in so doing, relied on hisclinical notes regarding the circumstances surrounding the signing of the consent form by her. He tendered the written consent formsigned by Ms. Dawson which confirms that he had “explained the nature and effect of the procedure” to her. He also produced hiscontemporaneous written report to Dr. Punt, Ms.

Dawson’s family physician, reporting his findings and stating that “[t]he risks andcomplications and failure rate of Laparoscopic Tubal Occlusion using Filshie Clips were explained to the patient today and the consentform was signed.” In addition, he testified to believing that he followed his usual routine of informing patients of the risks of injury tothe bowel, bladder and blood vessels and the alternatives of birth control available to a couple. Dr. Punt also testified to discussing therisks of the surgery with Ms.

Dawson. [25] It should also be noted that all the evidence called by the appellants suggested that Ms. Dawson had made a firm decision to haveno more children. According to the evidence, she and Mr. Baert discussed permanent sterilization methods and settled on tubal ligationsurgery. They discussed this subject, not only during the pregnancy, but also after the birth of the child. They decided that they wantedonly two children and, having read up on the various methods of birth control, ruled out all temporary methods.

Instead, they decided ona permanent method of birth control and understood there were two such methods: vasectomy and tubal ligation. Mr. Baert,Ms. Dawson’s partner, made it clear that he would not undergo a vasectomy. That left but one option, tubal ligation. Ms. Dawsondecided to go ahead with the procedure based not only on the discussions with her partner, but also on discussions with friends and otherfamily members, including her stepfather who told her he was in agreement with her decision. As noted above, she also discussed thematter with Dr. Punt, who then referred her to Dr. Graham. [26] Dr.

Graham called two gynaecologists, Drs. Unger and Vilos to testify on the issue of informed consent. Dr. Vilos testified that hehas never had a low risk patient such as Ms. Dawson decline laparoscopic tubal ligation on the basis of recognized risks of bowelperforation. Dr. Unger testified that many patients decide to have laparoscopic tubal ligation surgery before they even consult a surgicalconsultant and are not deterred by the surgical risks. [27] The test for causation for informed consent was set out in Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880 andrestated by the Supreme Court in Arndt v.

Smith, (SCC), [1997] 2 S.C.R. 539 where the Court stated the test was“whether a reasonable person in the circumstances of the plaintiff would have consented to the proposed treatment if all the risks hadbeen disclosed” (para. 17). In Arndt, the Supreme Court fully canvassed the rationale of Reibl v. Hughes and subsequent cases, notablyHollis v.

Dow Corning Corp., (SCC), [1995] 4 S.C.R. 634, and concluded that the modified objective test is appropriatein that it takes into account the particular concerns and special considerations of the patient within the framework of a reasonable personstandard. [28] The evidence of Drs.

Unger and Vilos outlines the reasonable person standard with respect to this type of surgical procedure. [29] In light of the foregoing, including the trial judge’s instructions to the jury and this recap of the evidence, I am of the opinion thetrial judge did not fail to adequately instruct the jury in relation to question 1(a), namely “Did Dr.

Graham obtain Lisa Baert’s informedconsent to the tubal ligation surgery?” I am also of the opinion the jury’s response to this question is not unreasonable. [30] In addition to the appellants’ contention that the trial judge did not properly instruct the jury on the issue of informed consent, theycontend he erred in refusing to permit them to call the evidence of some of Dr. Graham’s other patients to testify that Dr.

Graham didnot, in similar circumstances, tell them about the risks or alternatives of laparoscopic tubal ligation. [31] They also contend that the trial judge erred in refusing to allow them to call Mr. Madill, one of Ms. Dawson’s previous lawyers, inrebuttal to rebut the testimony of Dr. Punt, the family physician who referred Ms. Dawson to Dr. Graham, respecting her testimony onthe issue of the risks of bowel perforation. [32] In considering these contentions, it is necessary to note that the issues of fact to which the similar fact evidence and rebuttal

evidence related are different. I will set out in turn the issues to which they related. [ 33 ] As for the similar fact evidence, the appellants, in putting in their case, sought to introduce similar fact evidence consisting of the testimony of several other patients of Dr. Graham for the purpose of establishing that Dr. Graham was not in the habit of informing his patients of material risks associated with laparoscopic tubal ligations. Later, in meeting the case put in by Dr. Graham, the appellants again sought to adduce this evidence. They wished to do so for the purpose of rebutting the oral testimony of Dr.

Graham that he had in fact obtained the informed consent of Ms. Dawson in keeping with his usual, but not invariable, practice. In both instances, the similar fact evidence the appellants wished to introduce related to question 1(

a) put to the jury, namely “Did Dr. Graham obtain Lisa Baert’s informed consent to the tubal ligation surgery?” [ 34 ] As for the rebuttal evidence, the appellants sought, in meeting the case put forward by Dr. Graham, to call Mr. Madill in rebuttal. They wished to call him to rebut Dr. Punt’s testimony to the effect that she had informed Ms. Dawson of the risks associated with the procedure and that she did not regard the fact that Ms. Dawson was on Zoloft was particularly significant. Thus, the rebuttal evidence related the question of whether Ms. Dawson would have gone ahead anyway with the surgery in the absence of such explanation. This related to question 1(

c) put to the jury: “If the answer to question 1(

a) is “No”, would a reasonable person in Lisa Baert’s circumstances have proceeded with the tubal ligation surgery, if she had been properly informed?” [ 35 ] It is clear from this that Dr. Punt’s evidence had nothing to do with whether or not Dr. Graham had obtained Ms. Dawson’s informed consent, that is, it had nothing to do with question 1(a). Instead, her evidence was germane to the issue of whether, even if Dr. Graham had failed to obtain Ms. Dawson’s informed consent to the surgery by reason of failing to explain the risks to her, his failure was of no consequence because Dr. Punt had informed Ms.

Dawson of the risks. Thus, Dr. Punt’s initial testimony, while relating to the issue of informed consent, pertained only to the issue of whether Dr.

Graham’s alleged failure to obtain the informed consent caused or contributed to her injury, that is, it pertained to question 1(c). [ 36 ] Having identified the different questions to which the disputed similar fact evidence and rebuttal evidence pertained, I now turn to the issue of whether the trial judge erred in rejecting the similar fact evidence. [ 37 ] In determining this issue, it is necessary to take into account that the trial judge was required to weigh the evidence the appellants sought to adduce and to evaluate the probative value of the evidence against the risk of prejudice posed by the admission of the evidence. [ 38 ] Prejudice, in this sense, includes the risk of reasoning prejudice, the risk of the trial being reduced to a numbers game, as the trial judge put it, and of a distracting conflict over the similar fact evidence, including its degree of similarity, its accuracy and so on.

The decision of the trial judge in managing the trial entailed the exercise of judicial discretion, which means one judge might reasonably come to a different conclusion than another without error occurring: see R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908 . The decision of the trial judge is therefore entitled, as noted earlier, to “a high degree of deference,” and an appellate court is not to interfere unless the trial judge’s decision is “unreasonable”: see R. v.

Harvey, supra . [ 39 ] Having regard for the foregoing – considered in light of the circumstances of the case – I am of the opinion that no tenable basis exists for interfering on appeal with the trial judge’s rejection of the similar fact evidence. [ 40 ] While it can be said that the similar fact evidence the appellants sought to adduce may be relevant to the question of whether Dr. Graham obtained Ms. Dawson’s informed consent to the surgery and relevant to establish the fact he was not in the habit of informing his patients of the risk, or to rebut what Dr.

Graham said was his usual, though not invariable, practice, its probative value was comparatively slight. This is particularly clear in view, not only of its nature and intended purpose, but of the evidence tendered on this issue in this case by Dr. Graham, including the documentary evidence, and more particularly, the contemporaneous written record evidencing the fact he had explained the risks to her. See: R. v. Handy , supra . [ 41 ] As for prejudice, I agree with the trial judge that a prolonged factual dispute was likely to have arisen if he had allowed the appellants to call several of Dr.

Graham’s other patients for the purposes of establishing that he did not inform them of the risks associated with laparoscopic tubal ligation, and of then inviting the jury to draw the inference he did not inform Ms. Dawson of the risks. Indeed, allowing the appellants to lead this evidence was likely to have spawned a series of mini-trials – one in relation to the assertions of each of the other patients – for Dr.

Graham would surely have been entitled to challenge the similarities of the situations and the accuracy of the testimony of each of these witnesses, and then to adduce evidence, oral and documentary, for the purpose of refuting the testimony of each. The trial judge would then have been called upon to instruct the jury in this respect – or these respects – including instructions on the permissible and impermissible uses of such evidence. In turn, the jury would have been called upon to decide each of the disputes and the issues to which each gave rise, including the issues of fact.

This was not a case where the existence of a “similar

fact” or “similar facts” was beyond dispute. [ 42 ] Not only that, had the appellants, in putting in their case, been able to call six patients to say Dr. Graham had not informed them of the risks (for the purpose of proving he was in the habit of not informing his patients of the risk), perhaps Dr.

Graham could have called six other patients – or more for that matter – to say he had informed them of the risks and thus demonstrate that he was in the habit of doing so, or at least to demonstrate that it was his practice to do so, barring interruption or some such thing. [ 43 ] The trial judge was alive to this possibility and was aware that the trial could be reduced to a numbers game and become a serious distraction. While he did not say as much, he may also have been concerned that the introduction of similar fact evidence would necessitate an adjournment of the trial to allow Dr.

Graham to meet the testimony of the witnesses for the appellants, as well as to permit him to call witnesses of his own. [ 44 ] Having regard for the foregoing, including the discretionary nature of the ruling and the standard of appellate review, I am unable to find that the trial judge erred in rejecting the request to introduce similar fact evidence. In my opinion, the ruling, which attracts a high degree of deference, cannot be said to be unreasonable. [ 45 ] Moreover, I am of the opinion that Dr.

Graham could not have been held liable for a failure to obtain the informed consent of the patient because this failure, even if established, was of no consequence. I say that for this reason. Even if neither Dr. Graham nor Dr. Punt informed Ms. Dawson of the risks associated with the surgery, the evidence discloses that she would have proceeded with it in any event. In other words, the appellants failed to prove that she would not have proceeded with the surgery on the modified objective test outlined in Reibl v. Hughes if all the material risks had been explained to her.

No properly instructed jury, acting judicially, could have concluded otherwise, so no substantial wrong or miscarriage of justice occurred. [ 46 ] Accordingly, this ground of appeal must also fail. VII. Performance of the Surgery [ 47 ] The appellants alleged at trial that Dr. Graham breached his duty of care to Ms.

Dawson in performing the surgery in two respects: first, by proceeding with the surgery on discovering that she was suffering from post-partum depression and taking the prescription drug Zoloft; and, second, by employing a substandard technique in carrying out the surgery. [ 48 ] The jury concluded otherwise, as its verdict on this branch of the case demonstrates. Its verdict is found in its response to the question, left to it as question 2(a), “Did Dr.

Graham meet the standard of care, as would reasonably be expected of a gynecologist, in performing the surgery on Lisa Baert?” to which the jury replied “yes.” [ 49 ] On appeal, the appellants contended that, in as much as the jury’s verdict lay in its response to this question, the verdict must be set aside on the ground the trial judge erred in his instructions to the jury on this issue or, alternatively, the verdict is unreasonable. [ 50 ] The appellants contend that the trial judge erred in instructing the jury regarding the failure of Dr.

Graham to use the proper surgical procedure in performing the laparoscopic tubal ligation which resulted in the puncture of Ms. Dawson’s small bowel. Specifically, they argue that the trial judge erred when he summarized the appellants’ theory that the Veress needle must have been placed in too far and at a wrong angle because the experts did agree that injury could occur through improper technique. They also argue he erred in his instructions that the jury could not rule out that the injury occurred when the proper technique was employed.

They also take the position that the trial judge failed to instruct the jury that Ms. Dawson was a low risk patient and that injuries to organs are rarely suffered by such patients when the proper technique is employed by reason of the ingenious design of the Veress needle. [ 51 ] Finally, they contend that the trial judge failed to adequately address the issue of inference and erred in his caution to the jury about not speculating, which they argue may have left the jury with the impression that there was not enough evidence on which to draw an inference of negligent technique.

The trial judge’s instruction to the jury on this issue is as follows: … that Dr. Graham did not use the proper technique in the surgery. You heard Dr. Graham describe the technique that he said is his routine. The medical experts did not criticize this technique. The plaintiffs say though that it is open to you to infer that in the actual case of Lisa Baert, Dr. Graham did not follow that routine, but rather followed an improper technique.

Specifically, they suggest that you can conclude that he inserted the needle at the wrong angle or he inserted the needle too far, to an extent that it constituted an improper technique and therefore a failure to meet the standard of care.

[Trial, Charge to the Jury, lines 11-22 at p. 6674] [ 52 ] It is useful to point out the instructions on the standard of care against which Dr. Graham was to be measured. The trial judge stated: … You should note that a physician is only expected to act reasonably in practising medicine. A physician does not ensure his or her patient’s health. And not every mistake constitutes negligence. The standard of care that the law requires is not insurance against accidental slips, it is the degree of care that a normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances.

A specialist must meet the standard of skill of an ordinary specialist in his or her field. In this case, Dr. Graham must meet the standard of skill or an ordinary gynecologist. In deciding whether Dr. Graham was negligent, his conduct must be judged as of the time he dealt with Ms. Baert in June and July of 1999. Dr. Graham cannot be held liable on the basis of advances in medical knowledge that occurred later. The medical knowledge and techniques that are relevant to your evaluating the standard of care are those that would have been in existence and available to be known to Dr.

Graham in June and July of 1999. [Trial, Charge to the Jury, line 15 at p. 6664 to line 9 at p. 6665] [ 53 ] The trial judge then went on to point out that Dr. Graham maintained that he used proper procedure and conformed to general and approved practice and was therefore not negligent. He then informed the jury that they had to decide whether Dr.

Graham conducted himself as a reasonable gynaecologist would in similar circumstances according to the prevailing standard of practice that existed in June and July of 1999. [ 54 ] The trial judge concluded his instructions on the issue by stating that the jury was not at liberty to reject what the medical experts stated was the standard of care, at least not on the basis that it was not good enough, and that they must judge Dr.

Graham according to the expert testimony as to the standard of care demanded of a reasonable competent gynaecologist in similar circumstances at the time of the surgery. [ 55 ] The trial judge then instructed the jury that the appellants contended that Dr. Graham failed to meet the prevailing standard of practice in two ways: 1. He proceeded with the surgery on learning that Ms. Dawson was taking Zoloft, a mild sedative for post-partum depression. The trial judge pointed out that there was no evidence that Dr. Graham failed to meet the standard of care on this issue.

That is that there was no expert evidence that would have required him not to proceed with the surgery in these circumstances. The appellants contend that he erred in so instructing and therefore taking this issue away from the jury; and 2. That Dr. Graham did not use the proper technique and that it was open to the jury to infer that he inserted the needle at the wrong angle or inserted it in too deep which constituted improper technique resulting in damage to Ms.

Dawson. [ 56 ] The trial judge then stated that some experts had agreed that bowel perforation could result from improper technique and that they could not rule out improper technique in this case. He then reviewed the medical evidence on this issue, both indicating as to what the proper practice was and what the improper practice was, concluding that the onus is on the appellants to prove on a balance of probabilities that he did not perform in accordance with prevailing reasonable standards. [ 57 ] I will deal with these two issues in order. 1.

The Zoloft Issue [ 58 ] The appellants rely heavily on the failure of Dr. Graham not to proceed with the operation when he learned that Ms. Dawson had been diagnosed with post-partum depression and was taking Zoloft daily. Dr. Graham, in answering certain questions put to him on the examination for discovery, admitted that had he been aware of Ms. Dawson’s diagnosis of post-partum depression before the surgery, he would not have proceeded with the surgery but would have sent her back to her family physician and/or a psychiatrist.

Notwithstanding this, he did proceed with the surgery on learning of her condition in the operating room on the day of the surgery.

[59] The appellants contend that the trial judge erred in instructing the jury that expert evidence was required to determine theappropriate standard of care. Dr. Graham’s admission in their submission was sufficient to demonstrate a failure to meet an acceptablestandard. [60] On this point, it is important to note that Dr. Graham testified that he would not have proceeded with laparoscopic tubal ligation ona patient with severe significant depression or who was depressed and untreated. In his opinion, that was not Ms. Dawson’s situation. On review of all of the testimony of Dr.

Graham on this issue, it is clear that he took the position he would not have proceeded toschedule an operation of this kind on a patient in different circumstances from Ms. Dawson, that is someone diagnosed with severe orsignificant depression, not someone suffering from post-partum blues and taking a mild sedative such as Zoloft. [61] Drs. Vilos and Unger, the two experts who were asked whether it was a breach of the ordinary standard of care to proceed withsurgery in light of the reference to Zoloft, testified that, in their opinion, having regard to a number of factors that they identified, it wasnot.

They based their assessment on the decision to proceed on their technical knowledge of the procedure including: the dosage of amild antidepressant, Zoloft; the range of emotional responses of Ms. Dawson; the wish of the patient to continue with the operation; herreasons for wanting the operation in the first place; and, that the day surgery nurse and family physician did not signal any concernsabout proceeding with the surgery. All of those factors played a role in their expert assessment and opinions.

The use by the patient ofthe mild anti-depressant was not, in their expert opinion, a “contra-indication” and is a matter requiring technical knowledge, expertiseand training. [62] In my opinion, the trial judge did not err in instructing the jury on this issue. There was no evidentiary basis on which to formulatea standard of care that would have required Dr. Graham not to proceed with the surgery. [63] When one examines the evidence as a whole on this issue, it is clear that Dr. Graham’s evidence did not provide the factualfoundation on which a properly instructed jury could have rejected the testimony of Drs.

Unger and Vilos. There is, therefore, no basisfor finding the trial judge erred in his instructions to the jury in this respect, nor any basis for interfering with the conclusion arrived at bythe jury. 2. Failure to Use Proper Technique [64] The appellants contend that the trial judge failed to properly put their theory of improper technique employed by Dr. Graham inperforming the laparoscopic tubal ligation to the jury. They argue that he erred in summarizing the appellants’ theory that an inferenceought to be drawn and that Dr. Graham was likely negligent in his technique when he punctured Ms.

Dawson’s bowel. [65] The trial judge instructed the jury that the medical experts did not criticize the techniques used by Dr. Graham. He specificallydescribed the appellants’ theory and advised that, even though some of the medical experts agreed that bowel perforation could occur byskilled surgeons using proper techniques, some agreed that bowel perforation can result from improper technique. [66] He then advised that it was open to the jury to infer that Dr. Graham did use an improper technique.

He properly cautioned themthat an inference must be based on evidence and not on mere speculation or surmise and that the jury must be satisfied on a balance ofprobabilities that that was a reasonable inference to make. [67] The trial judge outlined the evidence, both for and against making the inference, and the burden of proof necessary to found theclaim in negligence.

It should also be noted that the appellants clearly outlined their theory with respect to the improper technique in theiraddress to the jury. [68] The obligation of a trial judge to address the evidence in detail was described by the Ontario Court of Appeal in Smith v. Wheeler(1974), (ON CA), 1 O.R. (2d) 329 (QL) (Ont. C.A.) at p. 331 as follows: It is not required that in his charge to the jury a trial Judge should repeat in detail the evidence of each witness which was given on aparticular issue.

In a civil case he discharges his function adequately if he directs attention to the issues of fact as they arise from theevidence in the particular case and directs attention to the evidence bearing upon those issues and relates those issues to the legalprinciples which may be relevant. … It was for the jury as finders of the facts to decide what evidence they chose to believe and whatevidence they chose to disbelieve. [69] A trial judge is not required, as such, to recount the evidence of each witness in detail. See: R. v. Almajidi, 2008 SKCA 56, 310

Sask. R. 142. In R. v. Ambrose, (SCC), [1977] 2 S.C.R. 717, the Supreme Court of Canada, in addressing this matter,stated, at pp. 725-726: … If counsel for the defence based the theory of the defence upon discrepancies in 1371 printed pages of evidence given by Crownwitnesses then it was his duty in his address to outline those discrepancies.

The learned trial judge was of the opinion that counsel forthe defence had done so most adequately and was, therefore, I think, properly of the opinion that it was neither necessary nor desirablethat he should repeat the outline of those discrepancies in his charge. … To have burdened the jury with a recital of discrepancies whichhad already been outlined in the very long and most complete address of counsel for the accused would not have served any usefulpurpose and might well have so confused the jury as to detract from their efficient discharge of their sworn duty. [70] That aptly describes the circumstances of this case.

The jury was informed at the outset of the charge by the trial judge that he wasnot going to go into the evidence in depth because counsel, in their closing arguments, had highlighted the most significant evidence. [71] The jury charge must be examined in the context of the whole trial and here the trial lasted nine weeks and much of the evidencefocused on the issue of the technique or improper technique used in a laparoscopic tubal ligation operation. [72] The jury was informed that it was the sole judge of the facts and the trial judge clearly set out the appellants’ theory that the bowelperforation was caused by improper technique.

The trial judge framed the issues the jury had to decide, including the appellants’ theory,that Dr. Graham used improper technique, informed them of their ability to draw inferences but made it clear that those inferences couldonly be made after a number of factual findings necessary to support the inferences. [73] Having regard for the charge as a whole, I am not persuaded that the trial judge erred in his instructions to the jury on this issue.

Inaddition, I am of the opinion that, not only was the jury adequately instructed on this issue, but the verdict cannot in the circumstances beseen to be unreasonable on the McKinley test. VIII. Post-Operative Care [74] The appellants alleged at trial that Ms Dawson’s surgery was not uneventful – suggesting a bowel puncture – and, as a result, Dr.Graham had a heightened duty of care in relation to post-operative care. [75] The jury did not agree. It responded in the affirmative to question 3(a): “Did Dr.

Graham meet the standard of care, as wouldreasonably be expected of a gynecologist, in the post-operative care for Lisa Baert?” [76] The appellants contended that the response should be set aside on the ground the trial judge failed to properly instruct the jury onthis issue, or that the response is unreasonable. They also contended that the trial judge erred in refusing to permit them to re-examineone of their witnesses and such error is fatal to the jury’s response to this question. [77] The trial judge instructed the jury that the appellants had the onus to prove on a balance of probabilities that Dr.

Graham’s conductpost-operation did not conform, or was not in accordance with, the standard of care required of a gynaecologist in Dr. Graham’scircumstances. He instructed the jury as follows: The onus is on the plaintiffs to prove on a balance of probabilities that Dr. Graham’s conduct did not accord with the prevailingstandard of practice. Put broadly, this question comes down to whether the standard of care required a gynecologist in Dr.

Graham’splace to have a heightened sense of concern that a bowel puncture could have occurred and therefore, to advise the day surgery nursesand the patient, so that they could be more alert for indications of a bowel puncture. You heard expert witnesses on behalf of the plaintiffs express the opinion that the standard of care required Dr. Graham to do justthat, to have the heightened sense of concern and to speak to the nurses and patient. And those expert witnesses said that since he did notdo it, he failed to meet the standard of care. You heard expert witnesses on behalf of Dr.

Graham express the opinion that the standard ofcare did not require him to do any of this. That there was no need for a heightened sense of concern and no need to advise anyone ofwhat had happened, relying on the nurses monitoring in day surgery and on the discharge instructions provided to the patient. Again,you must weigh the opinions of the experts so that you can determine whether Dr. Graham met the standard of care expected of him. [Trial, Charge to the Jury, line 1 to line 27 at p. 6773] [78] The trial judge then instructed the jury on the standard of care on this issue in the following terms:

As with the question of performing the surgery, the standard of care on this point is a technical medical matter. It’s not a matter of what a reasonable patient would expect. Because post-operative care is tied up with the technical aspects of how the surgery is conducted, what occurs during a surgery, how a patient is monitored and for what a patient is being monitored, the standard of care is determined according to the evidence of the expert witnesses. You will decide whether Dr. Graham, in his post-operative care for Ms. Baert, met the standard of skill of an ordinary gynecologist.

You may conclude that of the two broad approaches to post-operative care you’ve heard about, only one of them represents a recognized approach that establishes a standard of skill. Or you may conclude that each of the approaches you heard about is a recognized approach. You heard evidence from the medical experts to the effect that different physicians may disagree on certain points and some may hold strong views, but they recognize that there can be this difference of views without anyone being recognized as being outright wrong.

If there’s more than one recognized approach to a matter, it may be that a gynecologist meets the standard of care if the gynecologist conducts himself or herself in accordance with either of those recognized approaches. [Trial, Charge to the Jury, line 13 at p. 6678 to line 14 at p. 6679] [ 79 ] This issue is directly linked to the circumstances surrounding the operation and whether or not there was a significant event or occurrence that would have indicated a potential problem requiring a higher standard of post-operative care. To recap, Dr.

Graham noted in his surgical notes that he had a “poor gas flow volume” or high pressure during the surgery. There was a divergence of expert opinion on the effect and significance of high pressure or poor gas volume. [ 80 ] All the experts agreed that high pressure provides the best indicator of whether the Veress needle has been inserted into the proper location. It was the opinion of all experts, and Dr.

Graham himself, that high pressure is an indication that the needle is in the wrong place which could include the bowel; that bowel injuries, while rare, have serious consequences and that, in most cases involving a bowel puncture, a bowel puncture will not be detected even after an examination of the patient; and finally, that symptoms from bowel puncture may not typically arise and be apparent for a period between 24 to 72 hours after surgery. [ 81 ] The appellants contend that, in view of the fact that there was “high pressure” or “poor gas flow volume” during the course of the surgery, Dr.

Graham ought to have communicated to the day nurses and to the patient the possibility of a complication, its potential consequences and what symptoms to watch for. [ 82 ] Dr. Graham, however, points out that the expert evidence also shows that high pressure occurring during insufflations does not signal a possible bowel injury requiring a change in post-operative care. It should also be noted that Dr.

Graham testified that his note indicating “poor gas flow volume” refers to a high pressure reading which commonly occurs when establishing a pneumoperitoneum, since the pressure helps to identify the proper placement of the Veress needle. The evidence demonstrated that pneumoperitoneum is established using a Veress needle to penetrate the abdominal wall and insufflate the peritoneal space.

Surgeons rely on pressure readings to locate the peritoneal space because it is done without visualization and, if the gas flow through the port in the Veress needle is obstructed for any reason, the pressure readings will rise indicating that the needle is likely not in the peritoneal space. The evidence was that there are many causes of high pressure readings, most of which are of little or of no consequence to the patient.

When this occurs, all the gynaecologists testified that they maneuver the Veress needle in an attempt to reposition it to achieve appropriate pressure readings and correct placement. [ 83 ] While all experts agree that pressure readings are used for proper placement of the Veress needle, they differed in their opinion of the relationship between the high pressure reading and post-operative care. [ 84 ] The standard of care in these circumstances, that is post-operative care, therefore fails to be determined on the basis of expert opinion requiring deference on the part of the jury. [ 85 ] It is significant that no expert testified that Dr.

Graham should have identified a two millimetre bowel perforation during surgery. There was no evidence of bowel perforation when he scanned the area after the operation. The issue is the post-operative standard of care expected of a surgeon who experiences a high pressure reading, corrects it without identifying the cause and sees no intra-operative injuries post-operation. To put this into perspective, the evidence of Dr. Vilos is that only 20 percent of injuries to the bowel are related to the Veress needle and the other 80 percent are caused by the trochar used in the operation.

There was no evidence to illustrate the relationship between high pressure and a requirement for a higher standard of vigilance or care post-operation.

[86] The appellants contend that the trial judge erred in failing to direct the jury to make a finding of fact as to whether or not the highpressure problem was corrected in such a fashion to support the assumption of the defence experts that this was a minor occurrence andthen to determine the appropriate standard of care once the finding of fact was made.

In their submission, he further erred in failing todirect the jury that there was evidence that the insufflation problem was not minor and erred in restricting the cross-examination of Dr.Graham and his experts in this regard. [87] Notwithstanding those alleged errors, the appellants point out that none of the experts testified that their common practice was to donothing post-operation after an uneventful surgery and that it was their common practice to rely on the day surgery nurses to monitor thepatients for complications. That was Dr. Graham’s practice. The appellants contend that each of Dr.

Graham’s experts, Drs. Unger andVilos, testified to a practice of following up either by a phone call the next day by a qualified nurse to check on the patient’s recovery orto visit the patient after surgery to discuss the surgery and provide a phone number so the patient can contact the doctor, if directlyneeded. Even though it was not their practice, Drs. Vilos and Unger testified that Dr. Graham followed a standard of care which theysaid was acceptable although, in the submission of the appellants, there was no evidence that Dr.

Graham’s approach was a commonpractice and, in their submission, the trial judge erred in failing to direct the jury on the lack of evidence to support the conclusion thatDr.

Graham had followed accepted and standard practice. [88] The appellants argue that the trial judge failed to adequately explain their theory to the jury and that he failed to adequatelyhighlight the facts bearing on the issue of post-operative care. [89] As I noted earlier at para. 64 et seq, the trial judge specifically dealt with these issues and indeed it is worth repeating that he did nothave an obligation to recount in detail all of the evidence of each witness.

The parties had dealt with the facts at great length in theirsubmissions to the jury and this was duly noted and highlighted by the trial judge in his charge. [90] The trial judge carefully outlined the theories of both parties and advised that there was conflicting expert testimony on the issue ofpost-operative care and he then instructed the jury on their obligation to resolve the differences in these terms: Expert witnesses testified on behalf of Dr. Graham that the care provided by him complied with the prevailing standard ofpractice.

Expert witnesses testified on behalf of the plaintiffs that the care provided by Dr. Graham did not conform to the prevailingstandard of practice. You must weigh the evidence of those experts. You must decide whether Dr. Graham conducted himself as a reasonable gynecologist would, in similar circumstances, accordingto the prevailing standard of practice that existed in June and July of 1999. If you find that he did, then you will find that Dr. Grahammet the standard of care and was not negligent in this respect. If you find that Dr.

Graham did not conduct himself as a reasonablegynaecologist would, in similar circumstances, according to the prevailing standard of practice, that existed in June and July of 1999,then you will find that Dr. Graham did not meet the standard of care and was negligent in this respect. The onus is on the plaintiffs to prove on a balance of probabilities that Dr. Graham’s conduct did not accord with the prevailingstandard of practice. Put broadly, this question comes down to whether the standard of care required a gynecologist in Dr.

Graham’splace to have a heightened sense of concern that a bowel puncture could have occurred and therefore, to advise the day surgery nursesand the patient, so that they could be more alert for indications of a bowel puncture. You heard expert witnesses on behalf of the plaintiffs express the opinion that the standard of care required Dr. Graham to dothat, speak to the nurses and patient. And those expert witnesses said that since he did not do it, he failed to meet the standard of care. You heard expert witnesses on behalf of Dr.

Graham express the opinion that the standard of care did not require him to do any of this. That there was no need for a heightened sense of concern and no need to advise anyone of what had had happened, relying on the nursesmonitoring in day surgery and on the discharge instructions provided to the patient. Again, you must weigh the opinions of the expertsso that you can determine whether Dr.

Graham met the standard of care expected of him. [Trial, Charge to the Jury, line 21 at p. 6676 to line 12 at p. 6678] [91] The trial judge correctly explained to the jury that it could choose one body of expert opinion over the other which conforms to thelongstanding jurisprudence that the evidence of experts, as with other witnesses, is entirely a matter for the jury to assess and accept withrespect to all, part or none. See: Kielley v.

General Hospital Corp. (1997), (NL CA), 150 Nfld. & P.E.I.R. 163(N.F.C.A.) at para. 65. [92] The trial judge instructed the jury that the standard of care on post-operative care was to be decided according to the evidence ofthe expert witnesses. [93] The issue is, therefore, what is the post-operative standard of care expected of a surgeon who experiences a high pressure reading? The appellants contend that the trial judge erred in deciding that standard of care for the post-operative conduct did not fall within the ter

Neuzen v. Korn, (SCC), [1995] 3 S.C.R. 674 exception by reason that the question was a technical medical one and, as aresult, the jury could not reject the prevailing standard of practice and find it was negligent. Dr. Graham, on the other hand, argues thatthe consideration of expert evidence at trial is accorded great deference on appellate review. [94] It is useful to point out that no expert testified that Dr. Graham should have identified the two millimetre perforation in the bowel. The evidence is that 80 percent of all perforations are caused after the Veress needle is removed.

There was no statistical evidence thatof the 20 percent perforations related to the Veress needle linked it to a high pressure reading. [95] I agree with Dr. Graham that the trial judge did not err in instructing the jury on this issue. The jury was entitled to conclude thatthe standard of surveillance proposed was appropriate in spite of the disagreement between the parties’ experts. [96] According to the evidence, Dr.

Graham did not personally attend all patients post-operatively prior to discharge, but it was hispractice to walk through the day surgery unit before leaving the hospital and to inquire of the day nurses whether there were anyconcerns with respect to any of his patients. In this event, the nurse in charge could raise any concerns about his patients. He did not relyon “duty or on-call physicians” but was available at all times by pager if there was a problem. Dr.

Graham was aware of and relied onthe safeguards and criteria established by the hospital to be met prior to the discharge of a patient and the hospital’s policy to provideevery patient with both oral and written instructions upon discharge. [97] The experts agreed with the discharge policy and that it was appropriate to rely upon the judgment of recovery room nursing staff toassess day surgery patients for discharge. Ms. Dawson met all criteria for discharge. [98] Having regard for the whole of the foregoing, I am not persuaded that the trial judge erred in his instructions to the jury on thisissue.

Nor am I persuaded to the view the jury’s response to the question regarding this issue is unreasonable. [99] Finally, on the issue of post-operative care, the appellants argue the trial judge erred in not allowing re-examination of Dr. Adamsin relation to a matter that they contend was not raised in examination-in-chief, but arose out of the cross-examination of Dr. Adams. This matter relates to a contradiction by Dr. Adams of Dr.

Graham’s evidence that he had the option of doing nothing further in regard tothe obligation to communicate to the day surgery nurses. [100] The respondent points out that the permissible extent of re-examination of Dr. Adams was determined on a voir dire. He arguesthat the trial judge did not err in his decision to allow re-examination of the witness but to prohibit questions on new matters raised incross-examination. [101] The trial judge prohibited the appellants on re-examination to go outside Dr.

Adams’ area of expertise regarding appropriatefollow-up after a high pressure occurrence during a gynaecological procedure. Dr. Adams did not conduct gynaecological proceduresand was not qualified as an expert in that area. [102] I am not persuaded that the trial judge erred on this issue but, even if he had, I am of the opinion that no substantial wrong ormiscarriage of justice occurred, given all the other evidence on this issue. [103] In sum, then, I am of the view there is no tenable basis to interfere with the jury’s response to question 3(a). IX.

Settlement Issue [104] The appellants contend that the trial judge erred in instructing the jury that, if they did not find Dr. Graham liable as per the threequestions posed on the list of questions for the jury to decide, they did not have to answer any further questions as to the liability of thehospital defendants or Ms. Dawson. The appellants argue that s. 3(1) of The Contributory Negligence Act, R.S.S. 1978, c. C-31 (the“Act”) requires a decision to be made as to the liability of the other persons involved.

Section 3(1) of the Act provides: “[w]here damageor loss has been caused by the fault of two or more persons, the court shall determine the degree in which each person was at fault.” [105] The appellants rely on Amoco Canada Petroleum Co. v. Propak Systems Ltd., 2001 ABCA 110, [2001] 6 W.W.R. 628 and Murphy

Canada Exploration Co. v. Novagas Canada Ltd., 2009 ABQB 455, 11 Alta. L.R. (5th) 148. They also rely on M. (J.) v. Bradley (2004), (ON CA), 240 D.L.R. (4th) 435 (Ont. C.A.). [106] Interestingly, none of these cases deal with the situation where the non- settling party has not been found negligent. They deal withthe obligations of the settling and non-settling parties in applications to approve Perringer agreements. Section 3(1) requires thedetermination of degree of fault where the damage or loss has been caused by two or more persons. Here, the damage was not caused byDr.

Graham, but was caused – to the extent of their admission of liability – by the settling party or parties. [107] In this case, certain things are evident from the terms of the settlement agreement. The settling parties entered into the settlementagreement which provided that the settling parties did not admit liability but did, however, seek to limit the risks attendant on theuncertainties of a complex jury trial with a catastrophically-injured appellant.

The settling defendants were prepared to pay a certainamount of money to get out of the lawsuit, but they did not agree to do more in the absence of an apportionment of damages. [108] We are required to determine whether or not, in the circumstances of this case and having regard for the provisions of s. 3(1) of theAct and the Perringer agreement, the trial judge was required to request the jury to fix the apportionment of liability as between theappellants, the settling parties and a non-settling party who has been found not guilty of any negligence. [109] The terms of the settlement agreement provided for the possibility of an additional obligation “[i]n the event of a determination inthe Action…of a degree of fault for the damage or loss to Lisa Baert on the Settling Defendants…to bring the Settlement Amount up tothe amount of their degree of responsibility as so determined for the net damage or loss to Lisa Baert….” [parenthetical commentsomitted] [1] [110] It would appear that, in drafting the settlement agreement, the appellants and the settling parties assumed that there would be afinding of negligence against Dr.

Graham and, as a result, it would be necessary to apportion fault as required by s. 3(1) of the Act. [111] The jury found Dr. Graham was not negligent. Therefore, it was not necessary to apportion fault as between the appellants and thenon-settling party, Dr. Graham. To the extent that there was fault, the settling agreement has taken care of it. [112] The full amount of the loss payable, as set out in the proportionate share settlement agreement, has been assumed by the settlingparties with no right of contribution from Dr.

Graham. [113] The issue is reduced to whether s. 3(1) of the Act required the trial judge, in circumstances where the non-settling party was notfound to be negligent, to apportion damage or fault between the appellants and the settling parties. [114] The Act requires, as a pre-requisite to the application of s. 3(1), that damage or loss has been caused by the fault of “two or morepersons.” In this case, there was a finding that Dr. Graham was not negligent and, therefore, it was not necessary to find that theappellants contributed to the loss.

As a result, this was not a situation where the damage or loss was caused by the fault of two or morepersons. There was no necessity or obligation to determine the degree of fault. All the appellants have is a claim against the settlingparties which has been satisfied. [115] Moreover, the appellants had discontinued their action against all but Dr. Graham. Thus, the trial was concerned only with thepotential liability of Dr. Graham.

And, as I say, the jury found that he was not liable. [116] This ground of appeal must also be dismissed. [117] The respondent shall have his costs in this Court and in the Court below on the appropriate column. The intervenors did not seekcosts and, as a result, there will be no order as to costs with respect to them. DATED at the City of Regina, in the Province of Saskatchewan, this 18th day of February, A.D. 2011.

“CAMERON J.A.” for and on behalf of VANCISE J.A. I concur “CAMERON J.A.” CAMERON J.A. I concur “SMITH J.A.” SMITH J.A.