



COURT OF APPEAL FOR ONTARIO

CITATION:
Edwardson v. St. Joseph's
    Healthcare Hamilton (St. Joseph's Hospital), 2012 ONCA

719

DATE: 20121026

DOCKET: C53352

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Alan Edwardson, Alice Edwardson, personally and as
    Litigation Guardian for the minors Daniel Edwardson and Benjamin Edwardson

Plaintiffs (Respondents)

and

St. Joseph's Healthcare Hamilton  St. Joseph's
    Hospital and
Larry Kahn

Defendants (
Appellant
)

Harry Underwood and Andrew McCutcheon, for the appellant

James A. Scarfone and Lauren Grimaldi, for the
    respondents

Heard: September 28, 2012

On appeal from the judgment of Justice David Samuel Crane
    of the Superior Court of Justice, dated February 1, 2011.

By
    the Court:

[1]

The appellant, Dr. Larry Kahn, appeals the judgment of Crane J. of the
    Superior Court of Justice dated February 1, 2011, awarding damages of
    $404,810.28 plus pre-judgment interest and costs to the respondent Alan
    Edwardson, his wife and their two young sons.

[2]

The respondent suffered a stroke following a cervical rhizotomy, a
    medical procedure performed by Dr. Kahn, an anaesthetist.

[3]

The trial judge found that Dr. Kahn failed to obtain Mr. Edwardsons
    informed consent to the procedure, and that a reasonable person in the
    patients position would not have consented to the procedure had he been
    properly informed of the material risks.

[4]

The trial judge awarded general damages of $200,000 and damages for
    future economic loss of $100,000 to the respondent, and damages of $40,000 to
    his wife Alice, and $10,000 each to his sons Daniel and Benjamin under the
Family
    Law Act
, R.S.O. 1990, c.F.3.

[5]

The appellant appeals on four grounds, two relating to liability and two
    relating to damages.

[6]

First, the appellant contends that the trial judge erred by concluding
    that the respondent did not give his informed consent to the rhizotomy. The
    appellant concedes that the trial judge applied the appropriate legal test on
    the consent issue, as articulated in
Hopp v. Lepp
, [1980] 2 S.C.R.
    192, and
Reibl v. Hughes
, [1980] 2 S.C.R. 880. The appellant also does
    not challenge the trial judges finding that Dr. Kahn personally failed to
    obtain the respondents informed consent to the procedure he performed.
    However, the appellant submits that the trial judge erred by not finding that
    the respondent provided his informed consent to the procedure during a
    consultation with a different doctor (Dr. Beauprie), in a different province
    (Nova Scotia), more than eight months before Dr. Kahn performed the procedure
    in Hamilton, after the respondent had moved from Halifax to Thunder Bay to take
    up a new position as an Anglican clergyman.

[7]

The trial judge carefully reviewed the testimony of Dr. Beauprie, the
    appellant and the respondent, as well as the relevant medical documentation. He
    specifically believed the respondents testimony about his conversations with
    the two doctors and had serious concerns about the credibility of Dr. Kahn. He
    concluded that in the early Nova Scotia consultation with Dr. Beauprie, the
    respondent did not give an informed consent to the stage-three rhizotomy
    performed on him eight months later in Ontario. We can see no basis for
    interfering with this factual conclusion, anchored as it is in application of
    the correct legal test and common sense. In short, it is far removed from being
    a palpable and overriding error.

[8]

Second, the appellant contends that the trial judge erred in his
    conclusion that a reasonable person in the position of the respondent would not
    have consented to the rhizotomy if properly informed of the potential benefits
    and risks of the procedure.

[9]

Again, the trial judge carefully applied the correct legal test  the
    modified objective test  from
Reibl v. Hughes
. He considered the
    potential benefits and risks of the proposed procedure, a rhizotomy. He also
    reviewed the testimony of the respondent and his wife relating to the
    respondents medical condition, new employment in Thunder Bay as a clergyman,
    recent marriage, and birth of two children. These are precisely the types of
    factors mentioned as being worthy of consideration by the court in
Reibl v.
    Hughes
, at pp. 898-99.

[10]

Combining
    these factors, we can find no basis for interfering with the trial judges
    conclusion that a person in Mr. Edwardsons circumstances would reasonably
    decline the rhizotomy procedure, particularly at C2, 3 if fully and lawfully
    informed of the benefits and risks.

[11]

Third,
    the appellant contends that the award of general damages of $200,000 is too
    high.

[12]

We
    disagree. The trial judge carefully documented the physical, psychological and
    emotional effects on the appellant of the stroke caused by the failed
    rhizotomy. His award of general damages is entitled to great deference.

[13]

Fourth,
    the appellant contends that the trial judges award of $100,000 damages for
    future economic loss was speculative and should not have been made.

[14]

We
    do not accept this submission. The trial judge carefully reviewed the
    respondents previous and current medical condition. He also took account of
    both the professional successes and disappointments in the years following the
    failed medical procedure. Both the trial judges decision to award some damages
    in this category and the quantum of his award seem reasonable to us.

[15]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal
    fixed at $20,000, inclusive of disbursements and applicable taxes.

Released: October 26, 2012 (J.C.M.)

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

R.A. Blair J.A.


