Prevost v. Ali et al., 2011 SKCA 50

• Judge: Lane, Jackson and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 09, 2010
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 50;(2011), 371 Sask.R. 166 (CA)

Prevost v. Ali (2011), 371 Sask.R. 166 (CA);

    518 W.A.C. 166

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.004

James Prevost (appellant) v. Amjad Ali and Jyoti Nath Das (respondents)

(1877; 2011 SKCA 50)

Indexed As: Prevost v. Ali et al.

Saskatchewan Court of Appeal

Lane, Jackson and Ottenbreit, JJ.A.

April 20, 2011.

Summary:

Prevost underwent carpal tunnel surgery on his right wrist. The surgery was performed by Dr. Das with the assistance of Dr. Ali in a private clinic operated by them. During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve. Prevost sued Drs. Das and Ali, alleging that they 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. With respect to the standard of care, 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, 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 of Physicians and Surgeons 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.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 355 Sask.R. 34, dismissed the action. The court dismissed the claim against Dr. Ali outright. The court held that any failings on the part of Dr. Das did not amount to a breach of the standard of care. With respect to the issue of informed consent, the court accepted that Dr. Das had not informed Prevost of the risks and consequences of carpal tunnel surgery. However, the court held that Prevost had informed himself of those risks, thereby severing any causal link between the harm suffered and Dr. Das's failure to disclose. The court also held that 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 court held that in the absence of expert evidence demonstrating that those matters materially affected the risk associated with the procedure, it could not conclude that the reasonable physician would have had a duty to draw those matters to Prevost's attention. Prevost appealed.

The Saskatchewan Court of Appeal dismissed the appeal. While the trial judge erred in a few respects, those errors were immaterial to the result.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - Dr. Das performed carpel tunnel surgery on Prevost's right wrist - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Dr. Das never discussed the risks of carpal tunnel surgery with Prevost - However, Prevost had informed himself about those risks from the internet and other sources - The Saskatchewan Court of Appeal stated that outside information would only negate an attending physician's disclosure obligation if the patient was "properly informed by or from some person or source" - In this case, the court could not find that the information obtained by Prevost via the internet constituted "proper" or adequate information - However, the issue of informed consent ultimately turned on the question of whether Prevost would have nonetheless proceeded with the surgery if he had been fully informed of the risk and consequences - The applicability of a modified objective causation test did not prevent courts from considering whether a particular plaintiff's actions were consistent with, or undermined, his testimony on this point - In this case, it could be inferred from Prevost's decision to subsequently proceed with a second carpal tunnel surgery on his left wrist that, had Dr. Das properly informed him of all material risks and consequences, he would nonetheless have proceeded with the surgery - Prevost had therefore failed to prove causation - See paragraphs 34 to 44.

Medicine - Topic 3045

Relation with patient - Consent to treatment - What constitutes informed consent - The Saskatchewan Court of Appeal held that the trial judge in the case before it erred by applying the reasonable physician standard to what was essentially a question of informed consent - The court stated that "The objective 'reasonable physician' standard of care does not apply to negligence actions founded on a breach of the duty of disclosure. Instead, as has already been indicated, courts apply a modified objective 'reasonable patient' standard: the 'crucial question' is 'whether a reasonable person in the patient's position would want to know of the risk'" - See paragraph 49.

Medicine - Topic 3050

Relation with patient - Consent to treatment - Negligence - Causation - [See first Medicine - Topic 3045 and fourth Medicine - Topic 3052 ].

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - Dr. Das performed carpal tunnel surgery on Prevost's right wrist in a private clinic - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Prevost sued Dr. Das - In cross-examining Dr. Das, 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 of Physicians and Surgeons had not approved the clinic as a non-hospital surgical facility - The trial judge found that: (i) there was no evidence that the risks of carpal tunnel surgery were augmented by the limitations on Dr. Das's practice and qualifications; and (ii) Prevost had failed to prove that Dr. Das had a duty to disclose those limitations - The Saskatchewan Court of Appeal held that the trial judge erred where he limited his assessment of Dr. Das's qualifications to the question of whether those qualifications created a material risk to the surgery itself - The duty of disclosure, properly understood, required physicians to disclose not simply material risks but all material information - Dr. Das would have breached his duty of disclosure if the limitations on his practice constituted "material information" that a reasonable patient would have wanted to know, even if those limitations created no actual risk - See paragraph 50.

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - Dr. Das performed carpal tunnel surgery on Prevost's right wrist in a private clinic - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Prevost sued Dr. Das - In cross-examining Dr. Das, Prevost's counsel established that Dr. Das did not have "hospital privileges" and thus could not perform carpal tunnel surgery in a "hospital out-patient department" - The Saskatchewan Court of Appeal stated that "Whether Dr. Das was obliged to disclose that he did not have hospital privileges depends on whether this would be considered 'material information' ... 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. ... It would therefore be incorrect to give effect to Mr. Prevost's argument that the holding of privileges in and of itself offers an additional guarantee that the treating physician will perform the surgery properly. Thus, I cannot conclude that the information about Dr. Das's privileges was 'material information' that would have affected the treatment decisions of the reasonable patient in Mr. Prevost's situation" - See paragraphs 56 to 57.

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - Dr. Das performed carpal tunnel surgery on Prevost's right wrist in a private clinic - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Prevost sued Dr. Das - In cross-examining Dr. Das, Prevost's counsel established that Dr. Das was not certified in Canada as a specialist in surgery - The Saskatchewan Court of Appeal stated that "on the question of the standard of care, no evidence was led suggesting that carpal tunnel decompression surgery can only be competently performed by Canadian-certified specialists in surgery. In fact, there was evidence to the contrary" - With respect to the duty of disclosure, the court stated that "Hopp, and the cases that follow it, establish that a physician's qualifications generally are not typically subject to the duty to disclose. Moreover, in the case at bar, there was no evidence that Mr. Prevost himself viewed the information about Dr. Das's qualifications and experience as 'material information.' Neither counsel questioned him on this point. While a patient's subjective testimony as to what constitutes material information is not determinative of that information's 'materiality,' it is nonetheless highly informative. In the absence 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" - See paragraphs 58 to 60.

Medicine - Topic 3052

Relation with patient - Consent to treatment - Standard of disclosure by doctor - Dr. Das performed carpal tunnel surgery on Prevost's right wrist in a private clinic - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Prevost sued Dr. Das - In cross-examining Dr. Das, Prevost's counsel established that the College of Physicians and Surgeons had not approved the clinic as a non-hospital surgical facility - The Saskatchewan Court of Appeal stated that "There is no evidence that a reasonable physician of Dr. Das's standing and experience would have been aware of the need to obtain College approval. Without this evidence, neither the trial judge nor this Court can conclude that Dr. Das's duty of disclosure extended to this information. There is also another consideration in relation to Dr. Das's obligation to inform about the lack of approval. Information about a facility only constitutes 'material information' for the purposes of informed consent when treatment in an alternative facility would pose fewer risks to the patient. ... In the case before us, there was no evidence that treatment at an 'approved' non-hospital treatment facility posed fewer risks to Mr. Prevost than one that was not. Further, there was evidence in this case that Mr. Prevost, who had already seen Dr. Nair and made an appointment with Dr. Ekong, was well aware of the option of being treated in a hospital. There is therefore no causal link between the injury suffered and Dr. Das's failure to inform Mr. Prevost about the nature of his facilities" - See paragraphs 64 to 65.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - Dr. Das performed carpal tunnel surgery on Prevost's right wrist in a private clinic - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Prevost sued Dr. Das - In cross-examining Dr. Das, Prevost's counsel established that Dr. Das did not have "hospital privileges" and thus could not perform carpal tunnel surgery in a "hospital out-patient department" - The Saskatchewan Court of Appeal stated that "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. ... 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. 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. ... 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" - See paragraphs 52 to 55.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - Dr. Das performed carpal tunnel surgery on Prevost's right wrist in a private clinic - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Prevost sued Dr. Das - In cross-examining Dr. Das, Prevost's counsel established that the College of Physicians and Surgeons had not approved the clinic as a non-hospital surgical facility - The Saskatchewan Court of Appeal stated that "The failure to obtain approval will only give rise to a breach of the standard of care if a reasonable physician in Dr. Das's circumstances would have been aware of, and complied with, the 'approval requirement' in Bylaw 26.1 ... In my view, expert evidence would be required to determine whether the reasonable physician with this type of experience would have known about and complied with Bylaw 26.1. Overall, the general insufficiency of the evidentiary record leads to the conclusion that Mr. Prevost has not proven that Dr. Das breached the standard of care in this case by performing carpal tunnel surgery in a facility not approved by the College" - See paragraphs 61 to 63.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - Dr. Das performed carpal tunnel surgery on Prevost's right wrist - During the surgery, Prevost suffered an injury to his palmar cutaneous branch or a lesser branch of that nerve - Prevost sued Dr. Das alleging that he failed to conduct the surgery with the requisite care and skill - One issue was whether Dr. Das had fallen below the standard of care with respect to the location of the incision - The trial judge concluded that the opinion of Prevost's expert (Dr. Nickerson) related to the medically ideal location and did not establish an existing or requisite legal standard of care for physicians performing carpal tunnel surgery - The Saskatchewan Court of Appeal held that the trial judge properly considered both Dr. Nickerson's opinion that the incision location was not appropriate and the evidence of the defence expert (Dr. Kumar) that the incision location was reasonable - Having regard to the applicable standard of care, there was no basis on which to say that the trial judge erred by preferring the overall opinion of Dr. Kumar to that of Dr. Nickerson - See paragraphs 66 to 71.

Medicine - Topic 4248

Liability of practitioners - Negligence or fault - Failure to inform or disclose (incl. treatment choices) - [See both Medicine - Topic 3045 and all Medicine - Topic 3052 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

Richards v. McDonald's Restaurants of Canada (2008), 314 Sask.R. 198; 435 W.A.C. 198; 2008 SKCA 140, refd to. [para. 22].

A & L Plumbing & Heating Ltd. et al. v. Ridge Tool Co. (2010), 350 Sask.R. 148; 487 W.A.C. 148; 2010 SKCA 45, refd to. [para. 22].

Bunce v. Flick et al., [1991] 5 W.W.R. 623; 93 Sask.R. 53; 4 W.A.C. 53 (C.A.), refd to. [para. 22].

Sickel v. Gordy et al. (2008), 311 Sask.R. 235; 428 W.A.C. 235; 298 D.L.R.(4th) 151; 2008 SKCA 100, refd to. [para. 22].

Ferguson v. Hamilton Civic Hospital (1983), 144 D.L.R.(3d) 214 (Ont. H.C.), affd. (1985), 18 D.L.R.(4th) 638 (Ont. C.A.), refd to. [para. 36].

Davidson v. Connaught Laboratories (1980), 14 C.C.L.T. 251 (Ont. H.C.), refd to. [para. 37].

Scott v. Chapnik et al. (1998), 57 O.T.C. 330 (Gen. Div.), affd. (2000), 129 O.A.C. 330 (C.A.), refd to. [para. 37].

Gonda v. Kerbel (1982), 24 C.C.L.T. 222 (Ont. H.C.), refd to. [para. 37].

Hopps v. Robinson, 1984 CarswellBC 2285 (S.C.), refd to. [para. 37].

Goguen v. Crowe (1987), 80 N.S.R.(2d) 36; 200 A.P.R. 36; 40 C.C.L.T. 212 (N.S.T.D.), refd to. [para. 37].

Baert et al. v. Graham et al. (2011), 371 Sask.R. 1; 518 W.A.C. 1; 2011 SKCA 21, refd to. [para. 40].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 42].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 49].

Yepremian et al. v. Scarborough General Hospital et al. (1980), 110 D.L.R.(3d) 513 (Ont. C.A.), refd to. [para. 57].

Hopp v. Lepp - see Lepp v. Hopp

Lepp v. Hopp (1977), 5 A.R. 267; 77 D.L.R.(3d) 321 (T.D.), revd. (1979), 15 A.R. 472; 98 D.L.R.(3d) 464 (C.A.), revd. [1980] 2 S.C.R. 192; 32 N.R. 145; 22 A.R. 361, refd to. [para. 59].

Huisman et al. v. MacDonald et al., [2005] O.T.C. 444; 2005 CanLII 19833 (Sup. Ct.), affd. (2007), 224 O.A.C. 176; 280 D.L.R.(4th) 1; 2007 ONCA 391, refd to. [para. 59].

McKay v. Hall-Findlay et al. (2001), 305 A.R. 74; 2001 ABQB 1089, refd to. [para. 59].

Kangas v. Parker, [1976] 5 W.W.R. 25 (Sask. Q.B.), affd. [1978] 5 W.W.R. 667 (Sask. C.A.), refd to. [para. 65].

Skeels Estate et al. v. Iwashkiw et al., [2006] A.R. Uned. 344; [2006] 11 W.W.R. 632; 2006 ABQB 335, refd to. [para. 65].

R. v. Towne Cinema Theatres Ltd., [1985] 1 S.C.R. 494; 59 N.R. 101; 61 A.R. 35, refd to. [para. 70].

Authors and Works Noticed:

Kerans, Roger P., and Willey, Kim M., Standards of Review Employed by Appellate Courts (2nd Ed. 2006), pp. 133, 134, 135 [para. 22].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), p. 150 [paras. 50, 56].

Counsel:

Daniel Tapp, for James Prevost;

David Thera, for Amjad Ali and Jyoti Nath Das.

This appeal was heard on September 9, 2010, before Lane, Jackson and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on April 20, 2011.