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LIABILITY (MALPRACTICE) - Battery - Absence of valid consent

Wednesday, October 09, 2019 @ 6:17 AM  


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Appeal by the defendant physician from a finding of liability and assessment of damages for a failure to obtain informed consent. The defendant was an orthopedic surgeon who performed total wrist fusion surgery on the plaintiff, age 73. Following the surgery, the plaintiff was no longer able to earn money as a golf professional. Prior to the surgery, the plaintiff's ability to bend his wrist was compromised due to chronic pain and discomfort from arthritis. Following the surgery, the plaintiff lost all wrist flexion and was unable to grip a golf club. The plaintiff was initially unaware that the surgery involved insertion of a metal plate. The plaintiff sought a second opinion and underwent a second surgery that improved his condition to allow him to pick up a cup, but still left him unable to grip a golf club. The plaintiff's negligence suit was dismissed, save for his claim that he did not provide informed consent. The trial judge found that surgical options short of total wrist fusion were available, and that the plaintiff was not advised of those options, nor told that he would lose all mobility in his wrist from the procedure. Had proper disclosure been made, the plaintiff would have not undergone the procedure. The plaintiff was awarded general damages of $20,000 and $40,000 for lost income. The defendant appealed.

HELD: Appeal dismissed. The trial judge did not err in application of the "but for" test for causation in the informed consent context. The decision turned on the finding that the plaintiff was prevented from playing golf due to undergoing total wrist fusion surgery without proper warning rather than the development of his chronic condition. While the reference to the plaintiff's impaired hand function might have leaked into the general damage assessment, it was not the basis for finding liability. The trial judge did not misapprehend any of the expert evidence, or improperly reject the defence's expert evidence. No failure to properly analyze the defence theory of the plaintiff complaining in hindsight was established. The damages award was properly premised on the pain and suffering from the surgeries and the sequalae of the incapacity to golf that was caused by total wrist fusion.

Solomon v. Abughaduma, [2019] O.J. No. 4436, Ontario Court of Appeal, D. Paciocco, A.L. Harvison Young and B. Zarnett JJ.A., August 29, 2019. TLD-October72019009