



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Warlow v. Sadeghi,









2021 BCCA 46




Date: 20210203

Docket: CA46057

Between:

Elaine Elizabeth
Warlow

Appellant

(Plaintiff)

And

Dr. Ali
Sadeghi and Dr. Ali Sadeghi Inc.

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Harris

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Abrioux




On appeal from:  An
order of the Supreme Court of British Columbia, dated April 1, 2019 (
Warlow
v. Dr. Sadeghi
, 2019 BCSC 463, Vancouver Docket S126901).




Counsel for the Appellant:



D.O. Shane

E. Kwa





Counsel for the Respondents:



T. C. Hinkson

J. Lauwers





Place and Date of Hearing:



Vancouver, British
  Columbia

November 3, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

February 3, 2021









Written Reasons by:





The Honourable Mr. Justice Goepel





Concurred in by:





The Honourable Mr. Justice Harris

The Honourable Mr. Justice Abrioux








Summary:

The appellant suffered
permanent nerve damage from a wisdom tooth extraction. She sued the surgeon for
having failed to adequately inform her of the risk of potentially permanent
nerve pain. The trial judge found that the surgeon had not adequately informed the
appellant of the risk of nerve pain; however, the judge went on to find a
reasonable person in the appellants position would have consented to the surgery
even if properly informed and dismissed the claim. The appellant challenges the
finding that she would have consented to the surgery even if properly informed.

Held: Appeal dismissed. The
trial judge properly applied the modified objective test in concluding that the
appellant would have consented to the surgery even if adequately informed of
the risks. Absent a palpable and overriding error, the trial judges conclusions
were entitled to deference.

Reasons for Judgment of the
Honourable Mr. Justice Goepel:

INTRODUCTION

[1]

The appellant, Elaine Warlow, appeals the dismissal of her claim for
injuries suffered during a wisdom tooth extraction performed by the personal
respondent, Dr. Ali Sadeghi. During the surgery, Dr. Sadeghi injured
a nerve in Ms. Warlows lower right jaw, resulting in permanent and
debilitating nerve pain that has altered virtually every aspect of her life.

[2]

Ms. Warlow sued Dr. Sadeghi in negligence. By the time of the
trial, the parties had agreed that Dr. Sadeghi had performed the wisdom
tooth extraction to the required standard of care. The remaining issue regarding
liability was whether he had obtained Ms. Warlows informed consent before
the surgery.

[3]

Justice Iyer found that Dr. Sadeghi did not adequately inform Ms. Warlow
of the risk that having her wisdom tooth extracted could result in temporary or
permanent nerve pain. Justice Iyer went on to find that Dr. Sadeghi was
not required to expressly disclose the risk of permanent severe nerve pain
because that risk was too remote. She further found that a reasonable person in
Ms. Warlows circumstances would have decided to go ahead with the surgery
even if the risk had been fully disclosed.

[4]

Ms. Warlow submits that the trial judge erred in finding that Ms. Warlow
would, if properly advised, have proceeded with the surgery. Dr. Sadeghi
submits that Ms. Warlow has not identified any error of fact or law that
would permit this Court to allow the appeal.

BACKGROUND

[5]

To put the legal issues in context, it is necessary to first review the
events leading up to the surgery.

[6]

In 2010, Ms. Warlow was 41 years old and living in Vancouver. Since
2001, she had primarily been working as a full-time server at a busy
restaurant. She enjoyed her work and was very good at it. She usually worked
the busiest shifts, took extra shifts, and also worked part-time at other jobs.
She had an active social life and enjoyed the outdoors, going to the gym, and dancing
with friends. Ms. Warlow was generally healthy; although, she had previously
undergone medical procedures, including two sinus surgeries and other dental
work.

[7]

In August 2010, Ms. Warlow successfully applied for a position as a
flight attendant with Sunwing Airlines. After completing medical, fitness, and
security clearances, she commenced Sunwings intensive flight attendant
training program towards the end of September.

[8]

Also in September, Ms. Warlow began experiencing a painful
toothache and facial swelling in her lower right jaw. She went to her regular
dentist, Dr. Gardner, whose notes record that Ms. Warlow came in for
an emergency appointment on September 17, and that he tested the vitality
of her lower right first molar (tooth 46). She returned to his office on
September 23. Dr. Gardners notes for that visit state that he had planned
to do restorative work on her lower right first and second molars (teeth 46 and
47) but did not proceed because he was unable to freeze the area adequately. Dr. Gardner
placed some interim restorative material on those teeth as a temporary solution
and told Ms. Warlow to call him if the pain worsened.

[9]

The pain did worsen, but when Ms. Warlow called Dr. Gardner
later that day, she was told he had left the office. Ms. Warlow searched
online for an emergency dentist and found Dr. Martin, who saw her that
afternoon. Dr. Martins notes record that Ms. Warlow had pain and
swelling in the gum around tooth 47 and that she had seen her regular dentist
earlier that day for restorative work. Dr. Martin recorded that he was unable
to probe the area without significant pain and noted that Ms. Warlow appeared
to have a gum infection, which he described as a gingival abscess, possible
impacted food. Unable to do anything else owing to the pain Ms. Warlow
was in, he prescribed antibiotics for the infection and scheduled a follow-up
appointment.

[10]

Ms. Warlow saw Dr. Martin for the follow-up appointment on
September 29. He took a panoramic x-ray (panorex) of her mouth. He
recorded that the infection had improved but that the area still ached. He
noted that Ms. Warlow had 89 mm pockets on the distal side of tooth 47,
which was concerning as deep gum pockets are prone to infection. Dr. Martin
wrote that pericoronitis (inflammation and infection of the gum around a wisdom
tooth) was likely. He recommended Ms. Warlow have her impacted lower right
wisdom tooth (tooth 48) extracted. He referred her to Dr. David, an oral
and maxillofacial surgeon, on October 4 for a possible extraction.

[11]

In the week prior to October 4, Ms. Warlow completed the first
week of Sunwings flight attendant training program.

[12]

On October 4, Ms. Warlow
arrived at Dr. Davids office and was told that Dr. Sadeghi, an oral
and maxillofacial surgeon who practiced with Dr. David, would see her instead. Dr. Sadeghi
recommended extracting tooth 48. He advised Ms. Warlow that a risk of the
surgery was temporary or permanent nerve injury, which he described as altered
sensation, pins and needles, and/or numbness. He also discussed Ms. Warlows
other options and their risks and benefits, including extracting tooth 47 or
leaving both teeth in place. Ms. Warlow elected to proceed with the
extraction of tooth 48 and signed a generic consent form for the surgery. The
form stated that the anticipated nature and effect of the proposed surgery
with intravenous sedation had been explained to Ms. Warlow and continued:

I confirm that I have been informed that as a result of the
surgery, I may experience some of the more common post operative symptoms such
as: swelling, discomfort, dry socket, or infection.
I am aware that in some
situations there is a risk of temporary and/or permanent numbness or altered
sensation of the lower lip, chin, gums or tongue.
I am aware that the
removal of some upper teeth can result in sinus problems that may require
additional treatment. I am also aware that teeth and/or restorations adjacent
to the surgical area may require replacement following surgery.

[Emphasis added.]

[13]

During the surgery, Dr. Sadeghi
injured Ms. Warlows inferior alveolar nerve (IAN). Injury to the IAN is
a known risk associated with extraction of the lower wisdom teeth. As a result
of the injury, Ms. Warlow has experienced chronic and severe facial pain.
She has seen pain specialists, an oral science specialist, a neurosurgeon with
expertise in neurosurgical treatment of neuropathic pain, and her family doctor
for treatment of her pain, but none of the prescribed treatments have helped.

[14]

Ms. Warlows chronic pain has
significantly impacted her life. At the time of the surgery, she was in
Sunwings training program to become a flight attendant. Following surgery, she
completed the program; however, her pain and the side effects of prescribed medications
have made it impossible for her to work as a flight attendant. She resumed her
previous employment as a server at a restaurant, but her pain limited her
schedule to a maximum of two shifts per week, each of which needed to be during
the day and limited to a few hours. The pain also adversely affected the
quality of her work. As a result, her earning ability has decreased.

[15]

The pain has also affected other
aspects of Ms. Warlows life. Eating became difficult, resulting in weight
loss. She stopped exercising, dancing, and socializing, all of which had been
important parts of her life before the surgery. She has become socially
isolated.

[16]

In 2018, Ms. Warlow relocated
from Vancouver to Victoria as a result of financial problems. She has been
unable to find steady work and supports herself by cleaning homes two or three
mornings per week.

[17]

The trial judge found that Ms. Warlows life had been devastated by
the chronic and unresponsive neuropathic face pain from which she has suffered
for over eight years. The judge held that there was nothing to suggest that Ms.
Warlows situation will ever change.

THE TRIAL REASONS

[18]

The central issue in the litigation was whether Dr. Sadeghi
obtained Ms. Warlows informed consent before the surgery. It was common
ground at trial that the test to be applied in such circumstance was the
modified objective test established by the Supreme Court of Canada in
Reibl
v. Hughes,
[1980] 2 S.C.R. 880 and reaffirmed in
Arndt v. Smith,
[1997] 2 S.C.R. 539. The trial judge summarized the test as follows:

[44]      In summary, to establish a claim in negligence
based on a lack of informed consent, a plaintiff must prove each of the
following elements on a balance of probabilities:

a)

A risk
that should have been disclosed to the plaintiff was not disclosed or not
adequately disclosed in advance of the procedure; and

b)

A reasonable person in the plaintiffs circumstances would not have
consented to the procedure if properly advised of that risk.

[19]

The trial judge reviewed the evidence of Ms. Warlow and Dr. Sadeghi
concerning their interactions before the surgery. Ms. Warlow and Dr. Sadeghi
agreed that Dr. Sadeghi had reviewed with her the form she had completed; conducted
a facial examination; showed her the panorex, pointing out how tooth 48 had
rotated close to tooth 47; and indicating the location of her IAN canal. He
recommended that she have tooth 48 extracted that day. Ms. Warlow read and
signed the standard consent form.

[20]

Concerning risk disclosure, Ms. Warlow agreed that Dr. Sadeghi
told her about the possibility of nerve damage but described it as pins and
needles and tingling and that he did not tell her it could be permanent. Ms. Warlow
recalled the conversation lasted only a few minutes. She testified that Dr. Sadeghi
did not discuss with her any alternatives other than extraction of tooth 48.

[21]

Dr. Sadeghi testified that, following his standard practice, he
would have discussed two alternatives to extracting tooth 48 with Ms. Warlow:
extracting tooth 47 instead or leaving things as they were. He said he would
have described to her the risks associated with both alternatives. He gave evidence
of those risks.

[22]

Dr. Sadeghi testified he told Ms. Warlow that extracting tooth
47 would mean removing a functional molar, leaving the corresponding molar in
her upper jaw without a complement and rendering it dysfunctional.
Alternatively, leaving things as they were created the risk that acute
infection, like the one that had originally sent Ms. Warlow to Dr. Gardner
and Dr. Martin, could reoccur. Dr. Sadeghi said he told Ms. Warlow
if the infection reoccurred, it would necessitate further antibiotic use and that
there was a risk of the antibiotics becoming ineffective. He said he told her
that a subsequent infection could also spread to the jaw and neck and might
lead to hospitalization and death.

[23]

Dr. Sadeghi said he described to Ms. Warlow the consequences
of injuring her IAN when extracting tooth 48 as altered sensation, including
pins and needles and numbness, which could be temporary or permanent. He said
he would have told Ms. Warlow that the chance of injuring her IAN was 1.52%.
Dr. Sadeghi conceded that in describing the risk of nerve injury
associated with the extraction of tooth 48, he did not tell Ms. Warlow
there was a risk of permanent nerve pain or permanent neuropathic pain. He
said he does not inform patients of the risk of permanent neuropathic pain
because it is very remote. He said he has not seen any studies that quantify
this particular risk and that he has never encountered a case of permanent
neuropathic pain resulting from an IAN injury.

[24]

The trial judge found that both Ms. Warlow and Dr. Sadeghi
were credible witnesses. She found Dr. Sadeghis evidence of what he
discussed with Ms. Warlow before the surgery as more reliable than her
account, and, to the extent that they conflicted, she preferred his evidence.
She concluded that it was more likely than not that Dr. Sadeghi did
discuss alternatives to the extraction of tooth 48 with Ms. Warlow,
including the associated risks. She found he told her that extracting tooth 48
included a risk of temporary or permanent nerve injury, but did not tell her
there was any risk of neuropathic or nerve pain.

[25]

On whether Dr. Sadeghi should have disclosed that nerve pain was a
possible consequence and that it could be permanent, the trial judge agreed
with Ms. Warlow that telling a dental patient theres a risk of temporary
or permanent pins and needles or numbness conveyed a qualitatively
different meaning than telling a person that there was a risk of temporary or
permanent nerve pain. This is because the sensation of pins and needles or
numbness is strongly associated with the relatively benign and temporary
effects of local anesthetic in the gums wearing off, whereas pain has more
serious connotations to the ordinary patient. She found that in describing the
consequence of the risk of nerve injury to Ms. Warlow, Dr. Sadeghi
ought to have included the word pain along with other terms he used.

[26]

The trial judge rejected Ms. Warlows submission that Dr. Sadeghi
ought to have specifically mentioned there was a possibility of severe debilitating
chronic neuropathic pain. She found the evidence did not establish that this
was a reasonable, foreseeable risk. In that regard, she relied on the evidence
that Dr. Sadeghi and an expert called on his behalf, Dr. Aidelbaum,
who both testified that they knew of no other cases of permanent severe nerve
pain arising from an IAN injury.

[27]

Having found that Dr. Sadeghi ought to have included nerve pain as
a possible consequence of an IAN injury, the trial judge turned to the question
as to whether a reasonable person in Ms. Warlows circumstances would have
consented to the procedure if properly advised of that risk. In considering
this question, the judge made two critical findings. She found that Ms. Warlows
evidence did not address whether she would have agreed to go ahead with the
surgery if Dr. Sadeghi had included nerve pain in his description of a 1.52%
risk of temporary or permanent nerve injury. She further held that a reasonable
person in Ms. Warlows circumstances would have consented to the surgery
if the consequences of the nerve injury had been adequately described. After
discussing the circumstances relevant to the reasonable person analysis she
summarized her conclusion as follows:

[83]      Considering all of these
circumstances, I find that a reasonable person in Ms. Warlows shoes would
have consented to the extraction of tooth 48 by Dr. Sadeghi, even if
properly advised that the consequences of nerve injury included temporary or
permanent nerve pain as well as the other sensations Dr. Sadeghi
described.

[28]

Having found that Ms. Warlow had not established the elements
required to prove a lack of informed consent, the trial judge dismissed the
action.

ON APPEAL

[29]

On appeal, Ms. Warlow submits that the trial judge erred in finding
that the appellant would have proceeded with the surgery if she had been
properly advised of the material risk of permanent nerve pain. She submits that
the trial judge misapplied and misinterpreted evidence of the appellant on this
point and misapplied or failed to apply the modified objective test.

[30]

Dr. Sadeghi submits that Ms. Warlow has not identified any
error of fact or law that would permit this Court to allow the appeal. He says
that the trial judge properly applied the modified objective test.

DISCUSSION

[31]

The modified objective test is a test of causation:
Reibl
at 898900.
It asks whether a reasonable person in the plaintiffs circumstances would have
consented to the proposed treatment if all the risks, benefits, and
alternatives had been disclosed. The test relies on a combination of objective
and subjective factors to determine whether the failure to disclose actually
caused the harm of which the plaintiff complains.
Arndt
at para. 17.

[32]

Causation is a question of fact, which attracts a deferential standard
of review. Absent palpable and overriding error, deference must be given to the
trial judges findings:
Ediger v. Johnston,
2013 SCC 18 at para. 29.

[33]

At trial, Ms. Warlow had the burden to prove each element of her
cause of action in informed consent:

a)

a material,
special, or unusual risk was not disclosed to her in advance of the surgery; and

b)

a reasonable
person in her position would not have agreed to the surgery if she had been
sufficiently advised of such risk.

[34]

Ms. Warlow proved the first element of her cause of action. She should
have been told in advance of the surgery that permanent nerve pain was a
possible consequence.

[35]

The second element is a two-part test. The first part is subjective; the
second part is objective.  In
Bollman v. Soenen,
2014 ONCA 36, the court
set out the elements of the test:

[21]      The subjective test is
based on what the particular patient would have agreed to if the risks were
known. It will of necessity vary from patient to patient and take into account
factors unique to the individual. The objective test is based on what a
reasonable person in the respondent's position would have done.
Both the
subjective and the objective criteria must be established for the respondent to
prove on balance of probabilities that she is entitled to damages for the lack
of informed consent.

[Emphasis added.]

[36]

To meet the subjective part of the modified objective test, Ms. Warlow
needed to testify that if the material risks or treatment alternatives had been
adequately disclosed, she would not have consented to the surgery. There can be
no finding on what she would have done if she is not asked what she would have
done had she been properly advised:
Bollman
at paras. 2526.

[37]

Ms. Warlow contends that the trial judge erred in finding that she
did not give evidence on what she would have done if properly informed of the
risk of nerve pain. She argues the trial judge should have understood her
testimony as including what she would have done if properly informed of the
risk of lesser pain than permanent, debilitating nerve pain.

[38]

The judge did review Ms. Warlows evidence concerning what she would
have done if properly informed:

[79]

Ms. Warlow was asked in her direct examination whether she would
have consented to the surgery if she had known that it would turn out as it
did. She said that she would not have gone ahead if she had known she would
end up like this. As Dr. Sadeghi points out in his submission, that evidence
is not particularly helpful. No one who undergoes a medical procedure that
leaves them worse off than before would consent to the procedure if they knew
for certain that would happen. Rather, it is useful to ask whether a plaintiff
would have gone ahead if he or she had been fully informed about the risks of
material adverse consequences.

[80]

That question was not put clearly to
Ms. Warlow. After stating that she would not have consented to the surgery
if she had known the outcome, the questioning continued as follows:

Q. And what
about the possibility of complications?

A. No

Q. Well, what
do you mean by that no?

A. As far as
a possibility of how Id end up now?

Q. yes

A. No.

Q. if that
was explained to you what would your reaction be?

A. I would have left. I
wouldnt have  I would have asked for a second opinion or I  if it was told
to me then I would have known. I would have had options.

[81]

For the reasons given in the preceding
section, I have found that the possibility of permanent debilitating nerve pain
was so remote that it was not required to be disclosed. It is clear that
Ms. Warlow understood complications to mean the possibility of how Id
end up now. Having found that this was not a reasonably foreseeable outcome, Ms. Warlows
evidence does not address whether she would have agreed to go ahead with the
surgery if Dr. Sadeghi had included nerve pain in his description of a
1.52% risk of temporary or permanent nerve injury.

[39]

Ms. Warlow had the burden to prove what she would have done if she had
been properly warned. In this case, as set out in the above excerpt, Ms. Warlow
was not asked what she would have done if properly warned. She did not provide
the testimony necessary to meet her burden on the subjective aspect of the
modified objective test. Faced with this dearth of evidence, the trial judge
could not infer what Ms. Warlow would have done. The insufficiency of the evidence
means the plaintiff failed to meet her burden, and the trial judge did not err
in dismissing her action.

[40]

Even if it could be said that the trial judge erred in her handling of
the subjective aspect of the modified objective test, Ms. Warlow still
faces an insurmountable hurdle. The trial judge found an adequately informed
reasonable person in Ms. Warlows shoes would have proceeded with the
surgery. Ms. Warlow contends the trial judge failed to consider the two
alternatives to treatment when determining what a reasonable person in the
appellants position would have done. It is clear, however, from the trial
judges reasons that she was alive to the two alternatives. In that regard, she
outlined the evidence concerning the two alternatives and their consequences:

[51]      Dr. Sadeghi said
that he told Ms. Warlow that extracting tooth 47 would mean removing a
functional molar, leaving the corresponding molar in her upper jaw without a
complement and rendering it dysfunctional. Alternatively, leaving things as
they were created the risk that acute infection, like the one that had
originally sent Ms. Warlow to Dr. Gardner and Dr. Martin, could
recur. Dr. Sadeghi said he told Ms. Warlow that if the infection
recurred, it would necessitate further antibiotic use and a risk of antibiotics
becoming ineffective. He said that a subsequent infection could also spread to
the jaw and neck, and might lead to hospitalization and death.

[41]

The trial judge carefully reviewed the circumstances relevant to the
reasonable person analysis:

[82]      In summary, the circumstances relevant to the
reasonable person analysis are:

·

Ms. Warlow had recently experienced an acute gum infection
and understandably would have been concerned to avoid a recurrence, especially
because she was embarking on an exciting new career;

·

Both Dr. Martin and Dr. Sadeghi advised Ms. Warlow
that extraction of her wisdom tooth was the best option for her and
Ms. Warlow generally trusted and relied upon the advice of health
professionals;

·

Wisdom tooth removal is a common procedure;

·

Ms. Warlow had had various kinds of dental work previously;
and

·

Ms. Warlow consented to the surgery knowing that there was a
1.52% risk of temporary or permanent nerve injury that could result in altered
sensation, numbness and/or pins and needles.

[42]

Ms. Warlow has not identified any palpable and overriding error in
the trial judges findings relevant to the modified objective test. Instead,
she simply says the findings should have led the judge to a different
conclusion. It is not this Courts role to reweigh the evidence; the trial
judges findings are entitled to deference.

[43]

In the result, I would dismiss the appeal.

The Honourable Mr. Justice Goepel

I AGREE:

The Honourable Mr. Justice Harris

I AGREE:

The Honourable Mr. Justice
Abrioux


