2011 SKCA 050 Date:, 2011 SKCA 050

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 050 Date: 20110420 Between: Docket: 1877 James Prevost Appellant - and - Amjad Ali and Jyoti Nath Das Respondents Coram: Lane, Jackson & Ottenbreit JJ.A. Counsel: Daniel Tapp for James Prevost David Thera for Amjad Ali and Jyoti Nath Das

Appeal: From: 2009 SKQB 486 Heard: September 9, 2010 Disposition: Appeal Dismissed Written Reasons: April 20, 2011 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit Jackson J.A. I. Introduction [ 1 ] James Prevost underwent carpal tunnel surgery on his right wrist. The surgery was performed by Dr. Jyoti Nath Das with the assistance of Dr. Amjad Ali in a private clinic operated by them. The College of Physicians and Surgeons of Saskatchewan (the “College”) had not approved the clinic as a non-hospital surgical facility.

During the course of the surgery, Mr. Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of this nerve, a recognized risk of such an operation. As a result of the injury, Mr. Prevost endured significant and long-lasting pain. He sued Drs. Das and Ali, alleging negligence in the performance of the surgery. [ 2 ] Mr. Prevost alleged that the doctors breached their duty of care to him by failing to: (

i) conduct the surgery with the requisite care and skill; and (ii) obtain his informed consent to the surgery. Regarding his allegation that Drs. Das and Ali failed to meet the standard of care, Mr. Prevost submitted that Dr. Das failed to use standard techniques in the performance of the surgery, including placing the incision where he did. With respect to informed consent, Mr. Prevost submitted that he was entitled to be informed that: (

i) injury to the palmar cutaneous branch was a risk and that realization of the risk carried certain consequences; (ii) Dr. Das was not certified by the College as a specialist in the area; (iii) Dr. Das did not currently have privileges at any hospital in the Province; and (iv) Dr. Das did not have the College’s approval to operate a non-hospital surgical facility. [ 3 ] The case against the doctors was heard by a judge alone (see the reported decision: Prevost v. Ali , 2009 SKQB 486 , 355 Sask. R. 34). The learned trial judge dismissed the claim against Dr. Ali outright. With respect to Dr.

Das and the issue of the standard of care, the trial judge found that the circumstances under which the surgery was performed were not ideal, and that there could have been greater communication between the doctors and Mr. Prevost, but concluded that the surgery had ultimately been adequately performed and that any failings on the part of Dr. Das did not amount to a breach of the standard of care. [ 4 ] With respect to Dr. Das and the issue of informed consent, the trial judge accepted that Dr. Das had not informed Mr. Prevost of the risks and consequences of carpal tunnel surgery. He held, however, that Mr.

Prevost had informed himself of these risks, thereby severing any causal link between the harm suffered and Dr. Das’s failure to disclose. The trial judge also held that Mr. Prevost would have proceeded with the surgery even if Dr. Das had personally informed him of the risk and its consequences. With respect to Dr.

Das’s lack of privileges and specialist certification, and the non-approval of the surgical suite, the trial judge held that in the absence of expert evidence demonstrating that these matters materially affected the risk associated with the procedure, he could not conclude that the reasonable physician would have had a duty to draw these matters to Mr. Prevost's attention. [ 5 ] In the event of a successful appeal, the trial judge went on to assess damages. He did not accept that Mr. Prevost’s injuries were as serious as Mr. Prevost alleged. He found that Mr.

Prevost had “suffered no loss of motor function in his hand” and that “it only hurts when bumped” (para. 51). In his view, Mr. Prevost could have returned to his trucking duties in April 2007, if he had agreed to drive a truck with an automatic transmission. Consequently, the trial judge assessed damages in relatively minimal amounts: 1. non-pecuniary damages $25,000.00

2. loss of homemaking capacity $ 2,500.00 3. past loss of income $10,047.02 4. special damages $ 858.25 He did not assess any damages for future loss of income. [ 6 ] Mr. Prevost appeals all aspects of the decision. II. Overview and Evidence [ 7 ] In 2006, Mr. Prevost was suffering considerably from carpal tunnel problems in both wrists. His wife was ill. They had small children at home. He was the sole breadwinner, and his occupation demanded the use of his wrists in his work as a truck driver. His left wrist was worse than his right, and he was scheduled to have surgery on his left wrist with Dr.

Ekong, a noted specialist, on February 8, 2007. [ 8 ] By November 2006, the problems associated with Mr. Prevost’s right wrist had worsened. While attending at the Northgate Medi Clinic with his wife on November 25, 2006, he consulted Dr. Ali, his wife’s family physician, who suggested that his partner, Dr. Das, could alleviate these symptoms and cure Mr. Prevost’s carpal tunnel syndrome by operating on that wrist. Dr. Ali informed Mr. Prevost that Dr. Das could perform the surgery the next day, because the clinic had its own surgical suite. [ 9 ] Dr. Das received his training as a surgeon in India and England.

He was qualified as a general and orthopaedic surgeon in England but never obtained the comparable specialist certification in Canada. When he first came to Canada in 1977, however, he had been granted temporary surgical privileges by the Nipawin health region. These surgical privileges had extended to the performance of carpal tunnel surgeries. After practicing in Nipawin and Gravelbourg for approximately six years, Dr. Das moved to Regina. He estimated that since moving to Canada, he had performed two to three carpal tunnel surgeries a year. At the end of November 2006, Dr.

Das did not have hospital privileges in Regina and Dr. Das’s and Dr. Ali’s surgical suite had been open for about three months. They did not apply to have the suite approved by the College as a non-hospital treatment facility. [ 10 ] On November 29, 2006, Dr. Das performed the surgery in their surgical suite, assisted by Dr. Ali and no one else. [ 11 ] Prior to undergoing the surgery, Mr. Prevost had conducted internet research and consulted friends. He understood that there were risks associated with the surgery—specifically, the risk of nerve damage.

He testified, however, that “if I’d have known my hand would end up like this, I would’ve left it numb” (Appeal Book, Vol. II, p. 120). At trial, Dr. Das admitted that he had not personally informed Mr. Prevost of the risks of carpal tunnel surgery. In Dr. Das’s opinion, there was no need to discuss the risks because he did not anticipate any complications. [ 12 ] Mr. Prevost’s surgery took 45 to 50 minutes, approximately three times the length of a usual surgery. Blood flow to the surgical area was stopped by using a blood pressure cuff. Dr. Das asked Mr.

Prevost to deflate the cuff, and when he was unable to do it, Dr. Das deflated the cuff himself. At one point, Mr. Prevost experienced a sharp pain and was given further anaesthetic. Dr. Das did not use magnifying surgical loupes. [ 13 ] Mr. Prevost returned to the clinic on November 30, 2006 to have Dr. Das change the dressing, which felt tight. At that time, Mr. Prevost reported that his symptoms had reversed and that he was pleased with the result. On December 8, 2006, Mr. Prevost saw Dr. Ali for removal of the sutures. Dr. Ali advised him to return soon for the purposes of arranging physiotherapy. Mr.

Prevost told Dr. Ali that he would not be able to do so, as family commitments would occupy him for the next four weeks. He never returned to see Dr. Das. [ 14 ] On January 8, 2007, Mr. Prevost filed a statement of claim suing Drs. Das and Ali in negligence. The particulars of the claim alleged that the defendants had: (

i) failed to make incisions at the correct locations; (ii) failed to take reasonable steps to ensure that the median nerve was not injured; (iii) failed to become trained or educated about generally accepted techniques for carpal tunnel release surgery or to refer the plaintiff to someone who was so trained; (iv) failed to make a post-operative diagnosis of the plaintiff’s condition; (

v) failed to advise of material risk; and (vi) failed to give the plaintiff the option of the mid-palmar technique used by the vast majority of hand surgeons in Canada, and so on.

[ 15 ] On February 8, 2007, one month after the statement of claim was filed, Dr. Ekong performed carpal tunnel surgery on Mr. Prevost’s left wrist. The surgery took 10 minutes. There were no complications and after eight weeks, Mr. Prevost’s left wrist was completely recovered. [ 16 ] In the weeks following the second surgery, Mr. Prevost continued to allege difficulties with his right wrist. In the course of seeking post-operative care to ameliorate these difficulties, he complained to Dr. Ekong (who did not recommend further surgery), as well as his family physician and Dr. Nair, a neurologist. Dr.

Nair suggested medication and physiotherapy, but Mr. Prevost did not take this advice. At trial, Mr. Prevost gave evidence that he continued to suffer and that he was unable to work as a trucker. Instead, he was employed by the same company as a dispatcher at a considerably reduced wage. [ 17 ] The above facts are borne out by the evidence and were not disputed by Drs. Das and Ali. [ 18 ] In the realm of disputed matters, Mr. Prevost alleged that during the surgery: (

i) there was blood everywhere; (ii) Drs. Das and Ali had used paper bags as surgical draping material; and (iii) at one point, Dr. Das had stated that his scalpels were dull. The trial judge did not accept these allegations. [ 19 ] With respect to the conduct of the surgery, the Court was assisted by two experts: Dr. Duncan A. Nickerson, for Mr. Prevost, and Dr. Krishna Kumar, for Drs. Ali and Das. In the result, the trial judge preferred the opinion of Dr. Kumar to that of Dr. Nickerson. III. Issues and Standard of Review [ 20 ] It is difficult to discern the true issues raised by this case from Mr.

Prevost’s notice of appeal. The notice of appeal contains 18 grounds of appeal addressed to the question of liability and damages. Many of these grounds of appeal have sub-parts. Moreover, Mr. Prevost’s counsel has attempted to classify some questions of fact as questions of law. [ 21 ] In my view, the grounds of appeal are properly re-categorized as follows: 1. Did the trial judge make palpable and overriding errors of fact in finding that: (

a) there was minimal blood loss; (

b) the “medical authorities” were aware that Dr. Das was performing minor surgeries in his office; (

c) Mr. Prevost had suffered no loss of motor function and that the hand only hurt when bumped? 2. Did the trial judge err in admitting into evidence various exhibits and reports proffered by the defence? 3. Did the trial judge err by concluding that Mr. Prevost’s independent research on the internet precluded him from successfully arguing that he had not given informed consent to the surgery? 4. Did the trial judge err in addressing the following matters: (

a) Dr. Das’s lack of speciality in the area of carpal tunnel release; (

b) Dr. Das’s lack of hospital privileges; (

c) Dr. Das’s and Dr. Ali’s failure to obtain approval for the surgical suite? 5. Did the trial judge err in preferring the opinion of Dr. Kumar over that of Dr. Nickerson? 6. Did the trial judge err in dismissing the claim against Dr. Ali? 7. Did the trial judge err in his assessment of damages? [ 22 ] The applicable standard of appellate review varies depending on the ground of appeal advanced. Findings of fact may only be reversed if they represent “palpable and overriding error” (see: Housen v. Nikolaisen , 2002 SCC 33 at para. 10 , [2002] 2 S.C.R. 235).

The questions raised in this case, regarding the content of the standard of care and the duty to disclose, are questions of law and the standard of review of such questions is correctness (see: Housen at para. 8 ). The standard of review of correctness generally applies to the

interpretation of the rules about the hearing of evidence, but some deference is owed to the trial judge’s assessment of the evidence (see: Roger P. Kerans and Kim M. Willey, Standards of Review Employed by Appellate Courts , 2nd ed. (Edmonton: Juriliber, 2006) at pp. 133-35). A trial judge’s decision to accept or reject expert evidence is generally afforded the same degree of deference as findings of

fact (see: McDonalds Restaurants of Canada v. Richards, 2008 SKCA 140 at para. 17, 314 Sask. R. 198; Ridge Tool Company v. A & LPlumbing & Heating Ltd., 2010 SKCA 45 at para. 22, 350 Sask. R. 148). Finally, a trial judge’s assessment of damages will only be setaside if it is “inordinately high or low” or “unreasonable” (see: Bunce v. Flick, (SK CA), [1991] 5 W.W.R. 623 at para. 10; and Sickel Estate v. Gordy, 2008 SKCA 100 at para. 54, 298 D.L.R. (4th) 151). IV.

Summary [23] Having carefully considered all of the issues raised by Mr. Prevost, separately and together, I am driven to the conclusion that theappeal must be dismissed. While the trial judge erred in a few respects, these errors are immaterial to the result. [24] Three matters are particularly significant to the resolution of this appeal. First, when Mr. Prevost opted to have immediate surgeryperformed by Drs. Das and Ali in their private clinic, he was already scheduled to have surgery on his other wrist—in a hospital and witha specialist. Second, Mr.

Prevost decided to proceed with the second surgery even though he was dissatisfied with the outcome of thefirst. Those two facts make it impossible to challenge the trial judge’s finding that Mr. Prevost would have proceeded with the firstsurgery, even if he had been fully informed of its risks. He must be taken to have known the options available to him. Third, there is nobasis upon which to challenge the trial judge’s acceptance of the opinion of Dr. Das’s expert witness regarding the level of care and skillrequired for carpal tunnel surgery.

In considering each of the principal grounds of appeal put forward by Mr. Prevost, the Court returnsto one or more of these factors. In light of these factors, the errors committed by the trial judge have no effect and there is simply nobasis to intervene. The trial judge’s overall conclusion is unassailable. [25] I will now proceed to set out the reasons for my conclusion. V. Errors of Fact a. The finding with respect to blood loss [26] Mr. Prevost testified that there was “a lot of blood” and that at one point, Dr. Das had commented on the fact that the scalpels weredull. Drs.

Das and Ali testified that there was minimal blood loss and that they had no difficulty seeing the surgical area. The trialjudge made a specific finding of credibility against Mr. Prevost with respect to this matter. The trial judge found: [25] ... It is my distinct impression that references by Mr. Prevost to dull scalpels and excessive blood loss are overstatement orexaggeration. I note that he made no apparent mention of excessive blood loss while reviewing the details of his surgery with Dr.Nickerson.

The finding is significant, because of the importance attached to the need to maintain a “bloodless field” by the experts. [27] On this discrete point, the trial judge, having found that Mr. Prevost was not a credible witness, was left with the evidence of Drs.Das and Ali. It cannot be said that the trial judge made a palpable and overriding error. The trial judge was entitled to prefer thedoctors’ testimony over that of Mr. Prevost. While their evidence could be considered self-serving, it is no more so than that of Mr.Prevost.

Resolution of this issue of credibility must be left in the hands of the trier of fact. b. The finding that “medical authorities” were aware of Dr. Das’s performance of minor surgeries [28] The trial judge stated that the “medical authorities were aware that Dr. Das was performing minor surgery in his office” (para. 1). It is uncertain whether the trial judge is referring to the government payments system or the College. In any event, there is no evidenceon this point one way or the other. If the finding is set aside, it has little, if any, effect on the result.

It is essentially an irrelevantconsideration in this case. c. The finding that Mr. Prevost suffered no loss of motor function and that his hand hurt only when bumped [29] This finding cannot be supported. Mr. Prevost testified at length about his discomfort and the testimony of his employer supportedhim on this point. Mr. Prevost’s employer gave evidence that he did not allow Mr. Prevost to drive trucks for him for safety reasons. [30] Moreover, even if the trial judge had rejected the above evidence as not credible, he still had to contend with the detailed evidenceof Dr. Nickerson. Dr. Nickerson examined Mr.

Prevost at length and concluded as follows: Based on my interview and physical examination of Mr. Prevost and based on my review of the documents provided to me, it is myopinion that he has a painful neuroma of the palmar cutaneous branch of the median nerve. I am of the opinion that this problemreasonably precludes him from returning to work as a truck driver, as it precludes him from gripping objects tightly and firmly with his

right hand, thus potentially compromising his safety and that of others. The trial judge made no finding of credibility against Dr. Nickerson. No defence witness was called to refute the point. Indeed, Mr.Prevost’s counsel offered Dr. Kumar the opportunity of examining his client, but this offer was refused. In the light of this, the trialjudge’s finding cannot be supported. As a finding, however, it is relevant only in relation to the trial judge’s assessment of damages. VI. Evidentiary Rulings [31] Mr. Prevost challenges the trial judge’s decision to admit the following documents into evidence: (

a) Exhibit D-2 — the letters of Dr. Nair dated July 25, 2006 and July 31, 2007; (

b) Exhibit D-15 — a copy of a photograph taken by Dr. Nickerson, upon which Dr. Das had indicated where he had placed hisincision; (

c) Exhibit D-16 — a photograph of Dr. Das’s surgical suite taken seven months after the surgery had been performed; and (

d) Exhibit D-18 — Dr. Kumar’s written report. [32] Having regard to the standard of review, there is no basis on which to interfere with the trial judge’s decision to admit the first threedocuments. No error of law is alleged. I note as well that Dr. Nair’s letters were used by Mr. Prevost’s counsel in the course of hiscross-examination of both Dr. Kumar and Dr. Ekong, and the part of the letter dated July 31, 2007 with which counsel took issue wasactually led by counsel himself. [33] Mr.

Prevost challenges the fourth document on the basis of the opinion contained in the report—an issue better addressed later inthis reasons. VII. Informed Consent Regarding Risk and Its Consequences [34] Mr. Prevost contended at trial that Dr. Das had failed to properly explain the risks of surgery to him and argued that if he had beenproperly informed of the risks, he would not have proceeded with the surgery. In that regard, Mr. Prevost alleged that Dr.

Das breachedhis obligation to inform him of material risk, consequences and information regarding the surgery he was about to perform. [35] This case, as it relates to the issue of informed consent, presents an unusual set of facts in three respects. First, Dr. Das candidlyadmitted that he had never discussed the risks of carpal tunnel surgery with Mr. Prevost. Second, Mr. Prevost had informed himselfabout these risks from the internet and other sources. Third, Mr. Prevost proceeded with a second surgery on the other wrist shortly afterhaving issued his statement of claim in this matter.

Those facts give rise to two discrete issues: (

i) must the information regarding thematerial risks and consequences of a procedure come from the operating physician; and (ii) has Mr. Prevost proven that he would nothave proceeded with the surgery, if Dr. Das had informed him of the risk and consequences of nerve injury? [36] As to the first issue, it appears to be settled law that the physician who performs a procedure need not personally inform the patientof the risks associated with the procedure. In Ferguson v. Hamilton Civic Hospitals, (1983), (ON SC), 144 D.L.R. (3d) 214 at p. 246 (Ont. H.C.J.), affirmed (1985), (ON CA), 18 D.L.R. (4th) 638 (Ont.

C.A.), the plaintiff dealt withtwo physicians: Doctor #1 who had referred the plaintiff for an angiogram, and Doctor #2 who had performed the procedure. Indetermining whether the plaintiff had been properly informed, the trial judge, Krever J., considered whether the total informationprovided by both doctors together created a sufficient basis for informed consent.

Krever J. held that: “[w]hat is important is that beforethe patient is subjected to the procedure, he or she has been properly informed by or from some person or source [emphasis added]” (atp. 246). [37] The following decisions can be considered illustrations of the Ferguson principle: Davidson v. Connaught Laboratories (1980), 14C.C.L.T. 251 (Ont. H.C.J.); and Scott v. Chapnik, [1998] O.J. No. 1305 (Ont. Gen. Div.) (QL), aff'd [2000] O.J. No. 412 (Ont. C.A.)(QL). In each of those decisions, the information came from healthcare professionals other than the attending physician.

The principlehas also been extended to two other situations: where the information came from the informal advice of a physician friend, and where theinformation came from personal knowledge or past surgical experience: Gonda v. Kerbel (1982), 24 C.C.L.T. 222 (Ont. H.C.J.); Hoppsv. Robinson, 1984 CarswellBC 2285, [1984] B.C.J. No. 718 (QL) (B.C.S.C.), and Goguen v.

Crowe (1987), (NS SC),40 C.C.L.T. 212 (N.S.T.D.). [38] To restate the applicable principle, outside information will only negate the attending physician’s disclosure obligation if thepatient is “properly informed by or from some person or source” (see: Ferguson, supra). The determination of whether a patient is

properly informed by a non-medical source will depend on the circumstances of the particular case. In this case, I cannot find that theinformation obtained by Mr. Prevost via the internet constituted “proper” or adequate information. Internet research can be problematic. It is not always complete or reliable. Mr. Prevost has a Grade VIII education. There was no evidence before the Court as to the qualityof the internet material that he reviewed, and no assurance that what had been reviewed had been fully understood.

Further, it is onething to understand the risk, and an entirely different matter to understand the consequences of the risk should the potential problemcome to pass. [39] Ultimately, however, this part of the appeal does not turn on the adequacy of the internet research. Rather, it turns on the resolutionof the following issue: whether Mr. Prevost would nonetheless have proceeded with the surgery, if he had been fully informed of therisk and the consequences. [40] In Baert v.

Graham, 2011 SKCA 21, this Court considered the test for causation in informed consent cases: [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).... [Emphasis added.] [41] Mr.

Prevost’s counsel argued that the trial judge was not entitled to rely on the actual actions of his client in determining causation. In making this argument, he relied on the fact that the test for causation articulated above is not a subjective one but a “modified-objective” test. [42] In Arndt v. Smith, (SCC), [1997] 2 S.C.R. 539, the Supreme Court of Canada rejected the subjective test forcausation for these reasons: [16] ... A purely subjective test could serve as an incitement for a disappointed patient to bring an action.

The plaintiff will invariablystate with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent wouldnever have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness that cannot beaccepted.

It would bring inequitable and unnecessary pressure to bear upon the overburdened medical profession. [Emphasis added.] The applicability of a modified objective causation test does not prevent courts from considering whether a particular plaintiff’s actionsare consistent with, or undermine, his testimony on this point. When a plaintiff states, as Mr.

Prevost has done, that he would not haveproceeded with the surgery, had he known of its risks, his statement can be tested by comparing his testimony to what he actually did.Evidence that the plaintiff patient would have undergone treatment if properly informed is highly relevant to the determination ofwhether the “reasonable person” would similarly have done so. [43] In this case, Mr. Prevost chose to undergo the same surgery a second time even after being presented with all the necessaryinformation, and even though his symptoms had not resolved on the right side.

It can be inferred from his decision to proceed with thesecond surgery that, had Dr. Das properly informed Mr. Prevost of all material risks and consequences, Mr. Prevost would nonethelesshave proceeded with the November 2006 surgery. [44] For these reasons, I would not disturb the trial judge’s finding that Mr. Prevost has failed to prove causation. This ground of appealfails on that basis. VIII. Dr. Das’s Qualifications, Lack of Privileges and Surgical Suite Approval [45] In cross-examining Dr. Das, Mr. Prevost’s counsel established three limitations on Dr. Das’s practice:

(1) Dr. Das did not have “hospital privileges,” and thus could not perform carpal tunnel surgery in a “hospital out-patient department”;

(2) Dr. Das was not certified in Canada as a specialist in surgery; and (3) the College had not approved the Northgate Medi Clinic as a non-hospital surgical facility (see: Transcript, pp. 620-23). [46] In two separate portions of his judgment, the trial judge found that: (

i) there was no evidence that the risks of carpal tunnel surgerywere augmented by the limitations on Dr. Das’s practice and qualifications; and (ii) Mr. Prevost had failed to prove that Dr. Das had aduty to disclose these limitations. The trial judge addressed these questions in the following paragraphs: [28] In addition, absent evidence indicating that the Clinic surgical suite, as utilized by Dr. Das, was inadequately or inappropriately

equipped to safely undertake the procedure he performed, I am not satisfied that there is a causal connection between Mr. Prevost's injuryand the absence of College approval, nor am I satisfied that the absence of College approval, in itself, is proof of negligence. … [46] During the cross-examination of Dr. Das, counsel raised other issues that had not been discussed with or even drawn to theattention of Mr. Prevost. These issues included Dr. Das’ lack of Canadian specialist certification and non-approval of the Clinic surgicalsuite.

There was no expert evidence presented that either of these issues materially affected the risk associated with the procedure suchthat a reasonable physician would have a duty to draw them to Mr. Prevost's attention. [Emphasis added.] [47] The trial judge is partially correct in his statement of the law and his approach to this issue. If the administrative limitations on Dr.Das’s practice were such that a reasonable physician would not have performed the surgery in such circumstances, then Dr.

Das wouldhave fallen below the reasonable physician standard of care by performing carpal tunnel surgery, thereby breaching the duty of care. Tothat extent, it was appropriate for the trial judge to use the “reasonable physician” standard of care to determine whether risks inherent ina lack of clinic approval or specialist certification created an additional material risk that might give rise to liability. [48] This, however, only partially addresses the issue. Mr. Prevost submits that Dr.

Das is liable not only because he performed thesurgery while under certain limitations that created additional risk, but also (or alternatively) because he failed to disclose theselimitations. This second allegation, if proven, would amount to a breach of the duty of disclosure, not the standard of care. The trialjudge was required to recognize that the duty of disclosure, and the standard of care, were engaged. That he did not do so led to twoerrors. [49] First, the trial judge erred by applying the reasonable physician standard to what was essentially a question of informed consent.

The objective “reasonable physician” standard of care does not apply to negligence actions founded on a breach of the duty ofdisclosure. Instead, as has already been indicated, courts apply a modified objective “reasonable patient” standard: the “crucialquestion” is “whether a reasonable person in the patient’s position would want to know of the risk.” As the Court stated in Reibl v.Hughes, (SCC), [1980] 2 S.C.R. 880 (at pp. 894-95): ...

The issue under consideration is a different issue from that involved where the question is whether the doctor carried out hisprofessional activities by applicable professional standards. What is under consideration here is the patient’s right to know what risksare involved in undergoing or foregoing certain surgery or other treatment. [Emphasis added] Application of the “reasonable patient” test means that expert evidence of accepted medical practice will be relevant to, but notdeterminative of, the issue of informed consent. [50] Second, the trial judge limited his assessment of Dr.

Das’s qualifications to the question of whether those qualifications created amaterial risk to the surgery itself. The duty of disclosure, properly understood, requires physicians to disclose not simply material risksbut all material information. Dr. Das would have breached his duty of disclosure if the limitations on his practice constituted “materialinformation” that a reasonable patient would have wanted to know, even if those limitations created no actual risk.

While risk can be arelevant factor in assessing materiality, Justice Ellen Picard and Professor Gerald Robertson concluded, after an extensive review ofCanadian jurisprudence, that “the duty of disclosure is not confined to risks, but extends to other material information which a reasonablepatient would want to have” (see: Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Thomson Carswell, 2007) at150). The fact that the trial judge confined his analysis to risk only, and did not consider the question of disclosure, represents error.

The issue is whether that error justifies intervention in this case. [51] I will consider the question of standard of care and the question of disclosure in relation to the limitations on Dr. Das’s practiceunder three headings: (

i) hospital privileges; (ii) Dr. Das’s qualifications; and (iii) the lack of approval for the surgical suite. 1. Hospital Privileges [52]

Section 2(

i) of The Attending Health Professionals Regulations, R.R.S., c. R-8.2 Reg. 4, passed pursuant to The Regional HealthServices Act, S.S. 2002, c. R-8.2, defines the term “privileges” as follows: 2 (i) “privileges” means, in relation to a facility, the authority granted by a board to a physician, chiropractor, dentist, midwife or nursepractitioner to admit, register, diagnose, treat or discharge patients in that facility. Section 2(1)(

e) of The Regional Health Services Act defines “facility” to mean “a facility in or from which health services are provided.” [53] Sections 5 and 6 of The Attending Health Professionals Regulations also address the question of physician privileges.

Section 5prohibits unauthorized persons from exercising privileges in relation to a facility, except as provided in the Regulations:

Prohibition against unauthorized persons 5 Except as provided in these regulations, no person shall: (

a) admit a person to a facility as an in-patient; (

b) cause a person to be registered as an out-patient of a facility; (

c) attend, diagnose or treat a person admitted to a facility as an in-patient or registered as an out-patient of a facility; or (

d) discharge a person admitted to a facility as an in-patient or registered as an out-patient of a facility.

Section 6 specifies in greater detail what a physician may do, if he or she has been granted privileges in relation to a facility: Physicians 6

(1) This

section applies to physicians to whom privileges have been granted by a board with respect to a facility operated by the board.

(2) A physician may, within the scope of his or her privileges, do any of the following: (

a) admit a person to the facility as an in-patient; (

b) cause a person to be registered as an out-patient of the facility; (

c) attend a person admitted to the facility as an in-patient or registered as an out-patient of the facility; (

d) discharge a person admitted to the facility as an in-patient or registered as an out-patient of the facility. From this, I conclude that Dr. Das’s lack of “privileges” means nothing more than that he could not have performed this surgery in a hospital or other facility approved by the regional health authority. [ 54 ] There was no evidence before the trial judge in this case that a reasonable physician without hospital privileges would not operate in a non-hospital surgical facility.

Indeed, a physician might arguably choose to operate in a non-hospital facility because he or she does not have hospital privileges. An absence of privileges, therefore, only signals a breach of the duty of care when the physician “without privileges” performs a procedure that the “reasonable physician” would only undertake in a regional facility. [ 55 ] In this case, no evidence was led at trial to support Mr. Prevost’s suggestion that carpal tunnel surgeries are, in fact, exclusively done in a hospital out-patient department.

In fact, Bylaw 26.1 of the Regulatory Bylaws of the College, passed pursuant to The Medical Profession Act, 1981 , S.S. 1980-81, c. M-10.1, undermines this suggestion by allowing for the establishment of non-hospital treatment facilities for the performance of minor surgeries and explicitly identifying carpal tunnel release as one such surgery: 26.1 Operation of Non-Hospital Treatment Facilities in the Province of Saskatchewan (

a) The following bylaw has been developed to ensure the provision of quality patient care in non-hospital treatment facilities. This bylaw sets out conditions that must exist in a non-hospital treatment facility which is subject to the terms of this bylaw to allow a physician to: (

i) perform procedures in that facility; or (ii) provide anaesthesia procedures in that facility; or (iii) refer patients to that facility. … (

f) without limiting the generality of the foregoing, a non-hospital treatment facility is one in which any of the following surgical or endoscopic procedures are performed : … carpal tunnel release . From this, it is impossible to conclude that Dr. Das acted any differently than the reasonable physician operating his or her own non- hospital surgical facility would have done. No breach of the duty of care can be made out on this basis. [ 56 ] Whether Dr.

Das was obliged to disclose that he did not have hospital privileges depends on whether this would be considered “material information” (see: Legal Liability of Doctors and Hospitals in Canada, supra at p. 150). As has been previously indicated, the usual standard of disclosure is determined by the “reasonable patient” test: information must be disclosed if a reasonable person in the patient’s position would want to know about it, and even if most doctors would not mention it.

[57] As the Regulations indicate, privileges grant a physician access to facilities, but the fact that a physician has been accorded“privileges” does not act as a guarantee of competence. The Ontario Court of Appeal in Yepremian et al. v. Scarborough GeneralHospital et al. (1980), (ON CA), 110 D.L.R. (3d) 513 established that although public health providers control thegranting of privileges, they have no legal obligation to ensure competence among privileged physicians and will not be held liable forprivileged physicians’ negligence. It would therefore be incorrect to give effect to Mr.

Prevost’s argument that the holding of privilegesin and of itself offers an additional guarantee that the treating physician will perform the surgery properly. Thus, I cannot conclude thatthe information about Dr. Das’s privileges was “material information” that would have affected the treatment decisions of the reasonablepatient in Mr. Prevost’s situation. 2. Dr. Das’s Qualifications [58] On the question of the standard of care, no evidence was led suggesting that carpal tunnel decompression surgery can only becompetently performed by Canadian-certified specialists in surgery.

In fact, there was evidence to the contrary: • Dr. Das had previously been granted special surgical privileges in Nipawin, which allowed him to perform procedures such as gallbladder removal, joint operations, vasectomies and carpal tunnel surgeries (Transcript, p. 613). • Dr. Kumar described carpal tunnel surgery as a “watershed area,” performed by doctors with many different types of specialties(Transcript, p. 642). • Dr. Kumar opined that Dr. Das was a “well-qualified and trained general and orthopaedic surgeon…capable of performing carpaltunnel decompression” (Appeal Book, Vol. I, pp.162a-63a). Dr.

Kumar expressed this opinion knowing that Dr. Das had not receivedany training in Canada (Transcript, p. 671). [59] With respect to the duty of disclosure, the extent to which physicians must inform patients about their qualifications has beenestablished by such authorities as Hopp v. Lepp, (1979), 1979 ALTASCAD 76 , 98 D.L.R. (3d) 464, rev’g (1977), (AB KB), 77 D.L.R. (3d) 321, rev’d (SCC), [1980] 2 S.C.R. 192; Huisman v. MacDonald, (Ont. S.C.J.), [2005] O.J. No. 2332 (QL), aff’d 2007 ONCA 391, 280 D.L.R. (4th) 1 (Ont. C.A.); and McKay v. Hall-Findlay, 2001ABQB 1089 at para. 68, 305 A.R. 74.

In Hopp, the plaintiff suffered an injury following surgery on his slipped disc. Although thedefendant physician had performed and assisted in 60-75 such surgeries in the past, this was his first as a fully-qualified orthopaedicsurgeon. The plaintiff sued the physician, alleging, inter alia, that his consent to the operation was not “informed” because thedefendant had failed to disclose his level of experience—specifically, the fact that it would be the doctor’s first such operation afterobtaining his specialist licence.

The trial judge found that the defendant was not required to inform the patient about his lack ofexperience and dismissed this portion of the claim. On appeal, the Supreme Court of Canada upheld the trial judge’s decision. Hopp,and the cases that follow it, establish that a physician’s qualifications generally are not typically subject to the duty to disclose. [60] Moreover, in the case at bar, there was no evidence that Mr. Prevost himself viewed the information about Dr. Das’s qualificationsand experience as “material information.” Neither counsel questioned him on this point.

While a patient’s subjective testimony as towhat constitutes material information is not determinative of that information’s “materiality,” it is nonetheless highly informative. In theabsence of any such testimony, and in light of the case law above, I cannot conclude that the information about Dr. Das’s credentials was“material information” that would have affected the treatment decisions of the reasonable patient in Mr. Prevost’s situation. 3. Non-approval of the Treatment Facility [61] In considering the standard of care in relation to this limitation on Dr. Das’s practice, three points must be made.

First, it isimportant to recognize that any negligence associated with this failure is not based in incompetence. As the trial judge stated, non-approval in and of itself does not increase the risk attendant on carpal tunnel decompression surgery. Put differently, non-approval cannotaffect the trial judge’s finding that Dr. Das performed the surgery adequately and that his facility was properly equipped. [62] Second, lack of approval does not mean that the facility would not have been approved, or that the facility did not meet theCollege’s requirements. What is at issue here is the fact that Dr.

Das did not apply to have the surgical suite approved. [63] Third, the standard of care requires consideration of what a reasonable physician of Dr. Das’s experience and standing would do. Itis well- established that courts are in no position to compare the conduct of a defendant doctor to that required of the “reasonablepractitioner” without expert evidence. Drs. Das and Ali testified that they did not know they had to obtain approval for the suite. Thisevidence was brought out in the re-examination of Dr. Das. While Mr.

Prevost’s counsel submitted that the trial judge should not havepermitted re-examination on this point, this Court is in no position to challenge the trial judge’s ruling on this point. Dr. Kumar alsosaid he did not know about the College’s requirement. No evidence was called to demonstrate that a reasonable physician would knowthat approval had to be obtained. The failure to obtain approval will only give rise to a breach of the standard of care if a reasonablephysician in Dr. Das’s circumstances would have been aware of, and complied with, the “approval requirement” in Bylaw 26.1 referred

to above. In this case, it is significant that a local hospital provincial committee in Nipawin had previously granted Dr. Das specialsurgical privileges that allowed him to perform many surgical procedures, including carpal tunnel surgeries, in rural Saskatchewan. Inmy view, expert evidence would be required to determine whether the reasonable physician with this type of experience would haveknown about and complied with Bylaw 26.1. Overall, the general insufficiency of the evidentiary record leads to the conclusion thatMr. Prevost has not proven that Dr.

Das breached the standard of care in this case by performing carpal tunnel surgery in a facility notapproved by the College. [64] With respect to the duty to disclose, the Court is again hampered in the consideration of this issue. There is no evidence that areasonable physician of Dr. Das’s standing and experience would have been aware of the need to obtain College approval. Without thisevidence, neither the trial judge nor this Court can conclude that Dr. Das’s duty of disclosure extended to this information. [65] There is also another consideration in relation to Dr.

Das’s obligation to inform about the lack of approval. Information about afacility only constitutes “material information” for the purposes of informed consent when treatment in an alternative facility would posefewer risks to the patient. See: Kangas v. Parker, (SK KB), [1976] 5 W.W.R. 25 (Sask. Q.B.), aff’d at (SK CA), [1978] 5 W.W.R. 667 (Sask. C.A.) and Skeels Estate v. Iwashkiw, 2006 ABQB 335, [2006] 11 W.W.R. 632. In the casebefore us, there was no evidence that treatment at an “approved” non-hospital treatment facility posed fewer risks to Mr. Prevost thanone that was not.

Further, there was evidence in this case that Mr. Prevost, who had already seen Dr. Nair and made an appointment withDr. Ekong, was well aware of the option of being treated in a hospital. There is therefore no causal link between the injury suffered andDr. Das’s failure to inform Mr. Prevost about the nature of his facilities. IX. Did the Trial Judge Err in Preferring the Opinion of Dr. Kumar Over that of Dr. Nickerson? [66] In his report, Dr.

Nickerson identified three breaches of the standard of care related to the actual conduct of the carpal tunnelsurgery: (1) the lack of proper magnification, e.g., the lack of magnifying loupes; (2) the use of a blood pressure cuff rather than an electronic tourniquet to stop blood flow to the surgical area; and (3) an improper incision placement. [67] The issue of the magnification became a non-issue at trial when Dr. Ekong, who had performed Mr. Prevost’s second surgery,testified that he does not use magnifying loupes. The lack of an electronic tourniquet was also a peripheral issue.

The principal issuewas whether Dr. Das had fallen below the standard of care in making the incision. Specifically, the issue was whether the location of theincision unduly endangered the palmar cutaneous branch. [68] Upon hearing the evidence as a whole, including Dr. Kumar's evidence and the cross-examination of Dr. Nickerson, the trial judgeconcluded that Dr. Nickerson's opinion related to the medically ideal location and did not establish an existing or requisite legal standardof care for physicians performing carpal tunnel surgery (para. 33). [69] As counsel for Dr.

Das demonstrated, there was evidence to support that conclusion. First, Dr. Kumar testified that, while thelocation of Dr. Das's incision was not ideal, it was reasonable, and it would avoid damage to the palmar cutaneous branch in most cases(Transcript, pp. 652-56). Second, Dr. Nickerson acknowledged that a variety of landmarks have been advocated as a guide for the bestincision location over the years, and that these “ideal” locations have been located at various points on the palm. He acknowledged thatDr.

Das's incision was consistent with some of these past “ideal” incision points (Transcript, pp. 303-304, 354, 357, 367-68). Third, Dr.Nickerson acknowledged that this debate over the ideal incision location was likely to continue into the future and that although newarticles would be published and new landmarks advocated, the standard of care would not change overnight. He predicted that somesurgeons would continue to use their "tried and true" methods, and agreed that as long as a sound basis exists for a particular practice, itis acceptable. [70] Notwithstanding these concessions on Dr.

Nickerson’s part, it is also clear that he was strongly of the opinion that Dr. Das hadfallen below the standard of care. The standard of appellate review, however, does not permit this Court to decide anew which expert’sopinion to accept, in the absence of demonstrable error. ​As Dickson C.J.C. stated in Towne Cinema Theatres v. The Queen, (SCC), [1985] 1 S.C.R. 494 at 517: “[t]he law is clear that a trier of fact does not have to accept testimony, whether expert orotherwise. He can reject it, in whole or in part.

He cannot, however, reject it without good reason.” [71] In this case, the trial judge properly considered both Dr. Nickerson's opinion that the incision location was not appropriate (paras.30-33), and Dr. Kumar's evidence that the incision location was reasonable (paras. 34-35). The trial judge was clearly impressed by Dr.

Kumar: [35] Dr. Kumar has practiced neurosurgery since 1962. His credentials are extensive and impressive. He has significant experience with the treatment of carpal tunnel syndrome and performance of carpal tunnel release. He presented as a thoroughly knowledgeable and competent witness. His observations and opinions respecting the procedure undertaken by Dr. Das were very informative and persuasive. There is evidence from Dr. Nickerson that the reasonable physician in Dr. Das’s circumstances might have placed an incision using similar landmarks.

Having regard to the applicable standard of care, there is no basis on which to say that the trial judge erred by preferring the overall opinion of Dr. Kumar to that of Dr. Nickerson. X. Did the Trial Judge Err in Dismissing the Claim Against Dr. Ali? [ 72 ] The trial judge, early in his reasons, dismissed the claim against Dr. Ali for these reasons: [14] Dr. Ali's involvement was limited to assessing Mr. Prevost's condition, referring him to Dr. Das for treatment, and assisting with the procedure. He had no obvious reason to question Dr. Das' qualifications or expertise with regard to the procedure.

There was no expert evidence of any breach of the required standard of care on Dr. Ali's part. Under this circumstance, the claim against Dr. Ali is dismissed. [ 73 ] Given that the appeal against Dr. Das will be dismissed, there is no basis on which to interfere with this conclusion. XI. Did the Trial Judge Err in Assessing Damages? [ 74 ] Since my overall conclusion is that any errors that were made did not affect the result, it is not necessary to consider whether the trial judge erred in his assessment of damages. XII. Conclusion [ 75 ] The appeal is dismissed with costs on Column I.

DATED at the City of Regina, in the Province of Saskatchewan, this 20th day of April, A.D. 2011. __ “Jackson J.A.” _______________________ Jackson J.A. I concur __ “Jackson J.A. for” ____________________ Lane J.A. I concur ___ “Ottenbreit J.A.” ___________________ Ottenbreit J.A.