



COURT OF APPEAL FOR ONTARIO

CITATION: Solomon v. Abughaduma, 2019 ONCA 677

DATE: 20190829

DOCKET: C65534

Paciocco, Harvison Young and Zarnett JJ.A.

BETWEEN

Albert Solomon

Plaintiff (Respondent)

and

Read Mohamed Ali Abughaduma
, The
    Scarborough Hospital, General Site; John Doe and Jane Doe

Defendants (
Appellant
)

Anu Koshal and Natalie V. Kolos, for the appellant Read
    Mohamed Ali Abughaduma

Albert Solomon, acting in person

Shantona Chaudury and Brodie Noga, appearing as
amicus
    curiae

Heard: August 14, 2019

On appeal from the judgment of Justice Janet Wilson of
    the Superior Court of Justice, dated May 28, 2018, with reasons reported at
    2018 ONSC 3287, 49 C.C.L.T. (4th) 125.

Paciocco J.A.:

OVERVIEW

[1]

Dr. Abughaduma was found liable to pay $20,000 for general damages and
    $40,000 for lost income to Albert Solomon for having failed to obtain informed
    consent from Mr. Solomon before performing total wrist fusion surgery on him.
    After that surgery, Mr. Solomon was no longer able to earn money as a golf
    professional.

[2]

Dr. Abughaduma appeals the trial judges liability and damage decisions.
    Although he does not contest the trial judges finding that he breached his
    duty to warn Mr. Solomon, he argues that she erred in law by failing to apply
    the but for test for causation. Indeed, he urges that causation was disproved
    on the trial judges own factual findings.

[3]

Second, he argues that the trial judge erred in law in deciding on her
    own motion and contrary to the expert evidence that Dr. Abughaduma had a duty
    to warn Mr. Solomon of the risk of regional sympathetic dystrophy (RSD), a rare
    post-operative chronic regional pain syndrome that the trial judge found Mr.
    Solomon to have developed.

[4]

Finally, Dr. Abughaduma argues that the trial judge made several
    palpable and overriding errors in coming to her decision, including: (1) misapprehending
    the evidence of defence expert, Dr. van Schroder, about the impact of total
    wrist surgery on the ability to play golf; (2) misapprehending the evidence of
    Dr. Axelrod about the severity of Mr. Solomons arthritis; and (3)
    misapprehending Mr. Solomons own testimony about the nature of the complaints
    he made to Dr. Abughaduma. Dr. Abughaduma contends that this latter
    misapprehension caused the trial judge to fail to give proper consideration to
    Dr. Abughadumas hindsight defence.

[5]

For the reasons that follow, I do not accept any of these grounds of
    appeal and would dismiss the appeal.

THE MATERIAL FACTS

[6]

For many years, Mr. Solomon earned his living primarily as a golf
    teacher and golf hustler. With age, he began having problems with his left
    wrist that caused him pain and interfered with his golf game. After several
    years of discomfort and reduced wrist flexion he wanted these problems to be addressed.
    Initially, the medical doctors he consulted attempted to manage his condition
    with physiotherapy and anti-inflammatory medication. Dissatisfied with the results,
    Mr. Solomon decided to get serious. He was referred to Dr. Abughaduma, an
    orthopaedic surgeon to arrange for surgical intervention.

[7]

On February 25, 2010, when Mr. Solomon was 73 years old, Dr. Abughaduma
    performed total wrist fusion surgery on Mr. Solomons left wrist. This was
    achieved by inserting a four-inch metal plate above Mr. Solomons wrist joint
    and then placing Mr. Solomons wrist in a cast. Although Mr. Solomons ability
    to bend his wrist was seriously compromised before the operation, he could
    still bend his wrist. The surgery ended that.

[8]

When the cast was removed on March 9, 2010, Mr. Solomon discovered for
    the first time that a metal plate had been inserted, and that he had lost all
    wrist flexion. After the staples were removed, he was placed in another cast.
    This second cast was removed some six weeks later. Mr. Solomons wrist proved
    to be extremely swollen and he could not move his fingers. He was prescribed
    Percocet and physiotherapy to assist his convalescence. By August 17, 2010, Mr.
    Solomon was asking Dr. Abughaduma to remove the metal plate. Dr. Abughaduma discouraged
    this, advising Mr. Solomon that removing the metal plate would not make a lot
    of difference to the stiffness.

[9]

In December 2010, Mr. Solomon sought a second opinion. In July 2011, he
    managed to see Dr. Terry Axelrod, an experienced upper hand and upper extremity
    surgeon. As expected from the kind of surgery he had received, Mr. Solomon had
    no wrist flexion or extension when he met with Dr. Axelrod. However, he also had
    pain in his fingers and wrist, and hand stiffness so severe that he could not
    bring his fingers down to his palm, meaning he could not grip. His hand was like
    a lobster claw.

[10]

After
    studying Mr. Solomons pre-op and post-op x-rays, Dr. Axelrod explained to Mr.
    Solomon that there had been surgical alternatives to a full wrist fusion.

[11]

He
    also cautioned Mr. Solomon that although there was a 50% to 60% chance that further
    surgery, including removing the metal plate, could improve things by increasing
    the flexion in his hand and possibly reducing his pain, further surgery would
    not make his hand or wrist normal.

[12]

In
    October 2011, Mr. Solomon had the further surgery. This second surgery
    succeeded in improving Mr. Solomons grip so that he could pick up a coffee
    cup, but he still could not grip a golf club, and his wrist was still fused and
    immobile.

[13]

On
    February 23, 2017, Mr. Solomon sued Dr. Abughaduma in negligence, claiming
    damages for pain and suffering and lost income from his incapacity to play golf.

[14]

On
    December 7, 2017, all of Mr. Solomons claims were dismissed, save and except
    for the claim that Dr. Abughaduma failed to obtain [Mr. Solomons] informed
    consent. That claim proceeded to trial. Central to Mr. Solomons claim is his
    assertion that had he been advised that he was having total wrist fusion
    surgery, he would not have had the procedure, and that the surgery he did have has
    prevented him from playing golf.

[15]

During
    the trial, competing expert evidence was provided. Most materially, Dr.
    Axelrod, called by Mr. Solomon, testified that Mr. Solomons pre-operative
    wrist arthritis was moderate and localized. Therefore, there were available surgical
    options short of a total wrist fusion.

[16]

Defence
    expert Dr. von Schroeder testified that Mr. Solomons pre-operative wrist
    arthritis was severe, precluding the other surgical options. Dr. von Schroeder
    also testified that he has had patients who have opted for the same total wrist
    fusion surgery that Mr. Solomon had and played better golf afterwards. This evidence
    was offered in support of the defence theory that a reasonable person in Mr.
    Solomons shoes would have consented to the surgery, even if properly informed.

[17]

The
    trial judge found in Mr. Solomons favour. In the course of doing so, she made
    the following findings that are material to this appeal:

·

Ms. Solomon informed Dr. Abughaduma that he earned a living
    playing golf, wanted the surgery to reduce his pain to improve his golf game, requested
    the kind of wrist fusion surgery he saw on the internet that would help him cock
    his wrist better, and that he would need to be able to cock his wrist to hold
    a golf club;

·

At the time, Mr. Solomon did not have generalized advanced
    arthritis of the entire wrist. Therefore, surgical options short of total
    wrist fusion were available;

·

Mr. Solomon had not been provided with adequate disclosure before
    the total wrist fusion surgery. Specifically, he was not advised of other
    available surgical options and he was not told that he would lose all mobility
    in his wrist as a result of [the procedure Dr. Abughaduma was proposing] and
    that a metal plate would be inserted in his wrist.

·

Had proper disclosure been made, Mr. Solomon would not have
    agreed to a total wrist fusion, and would have in all probability opted for
    one of the alternative surgical options that would not have totally eliminated
    his wrist movements, or perhaps he would have chosen to play through the pain;

·

A reasonable person in Mr. Solomons shoes, properly informed,
    would make the choice not to have total wrist fusion surgery;

·

During the surgery, Mr. Solomon contracted RSD, a rare and
    unfortunate risk inherent with all surgeries that caused considerable pain and
    the loss of function in Mr. Solomons fingers; and

·

Dr. Abughaduma did not tell Mr. Solomon about the rare and
    devastating risk of RSD, and the failure to do so was a breach of Dr. Abughadumas
    duty to disclose.

ISSUES

[18]

Dr.
    Abughaduma appeals both the liability and damages findings. In the appeal, he does
    not contest the trial judges factual determination that Dr. Abughaduma failed
    to secure Mr. Solomons informed consent to the surgery, or that Mr. Solomon
    would not have had total wrist fusion surgery had that occurred. However, he
    claims that the trial judge made other material errors. Those alleged errors
    can best be analysed in the following order:

A.

Did the trial judge err by holding that the risk of RSD should have been
    disclosed?

B.

Did the trial judge err in analyzing the law of causation?

C.

Did the trial judge misapprehend or improperly reject Dr. von Schroeders
    evidence?

D.

Did the trial judge misapprehend Dr. Axelrods evidence?

E.

Did the trial judge
    misapprehend Mr. Solomons complaint, thereby failing to properly analyse the
    defence theory of hindsight?

ANALYSIS

A.

DID THE TRIAL JUDGE ERR BY HOLDING THAT THE RISK OF RSD SHOULD HAVE BEEN
    DISCLOSED?

[19]

Dr.
    Abughaduma urges that the trial judge erred in finding that the risk of RSD
    should have been disclosed. He contends that: (1) RSD is too rare and unpredictable
    a condition to give rise to a duty to warn, and (2) the trial judge erred in
    finding this breach to have occurred given that it was not pleaded, and she
    raised it of her own initiative.

[20]

In
    my view, we need not resolve whether either alleged error occurred. The trial
    judge, mindful that this issue had been raised and explored only tangentially,
    made clear that the RSD disclosure issue was not necessary to her decision.
    That being so, if the trial judge did commit either or both alleged errors
    those errors are immaterial to her ultimate decision. I would therefore dismiss
    this ground of appeal.

B.

DID THE TRIAL JUDGE ERR IN ANALYZING THE LAW OF CAUSATION?

[21]

Dr.
    Abughaduma argues that the trial judge erred in analyzing the law of causation.
    Specifically, he contends that the trial judge erred in applying the but for
    test in the informed consent context by failing to determine whether the
    failure to warn brought about Mr. Solomons injuries. More specifically, he
    argues that the trial judge failed to find that the injuries would been avoided
    if he had been properly warned and chosen one of the alternative surgeries:
Cojocaru
    v. British Columbia Womens Hospital and Health Centre
, 2013 SCC 30,
    [2013] 2 SCR 357;
Van Dyke v. Grey Bruce Regional Health Centre,
255
    D.L.R. (4th) 397 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005]
    S.C.C.A. No. 335.

[22]

Central
    to Dr. Abughadumas argument is his thesis that the damages the trial judge
    found arose from the RSD. His argument is that since the trial judge accepted
    correctly that RSD is a random risk in any surgery and could have been
    contracted from the surgical alternatives, a causation finding is not possible;
    instead of holding Dr. Abughaduma liable for damages, he should have been
    absolved of responsibility.

[23]

This
    argument raises interesting causation and remoteness questions but, in my view,
    we need not consider them because Dr. Abughadumas central thesis about the
    basis for the trial judges decision  that the damage arose from the RSD  is
    not correct. At most, it can be credibly argued that the trial judge may have
    allowed the RSD symptoms to exert modest influence on her general damage
    assessment. But it cannot realistically be contended that the trial judge
    rested her finding that Mr. Solomon lost the ability to golf on the RSD symptoms.
    The trial judge asserted repeatedly in her reasons for judgment that it was the
    total wrist fusion surgery that Mr. Solomon had without proper warning that prevented
    him from playing golf. She said so more than a half dozen times including in
    this passage in the section of her endorsement called Impact of Loss of Range
    of Motion:

A total wrist fusion offered the best chance to totally
    eliminate pain, but it also eliminated all wrist movement, which impaired the
    ability to cock the wrist: essential to the Plaintiffs golfing livelihood.

[24]

In
    his submission, Dr. Abughaduma ignores these passages and focuses primarily on
    two others. The first passage he features appears shortly after the trial judge
    had already observed that the total wrist fusion surgery rendered Mr. Solomons
    wrist joint immobile making it impossible for him to play golf, and immediately
    after she described how Mr. Solomon had also developed RSD. In that featured
    passage the trial judge said, in relevant part:

This [RSD] condition meant that post-surgery the Plaintiff had
    no movement in his wrist, and also that he lost functional use of his fingers.
    His pain increased. The loss of use of his fingers and the lobster claw
    configuration was the result of the RSD. He could not play golf. The Plaintiff
    did not know until after the surgery that the metal plate had been inserted in
    his wrist preventing any movement of the wrist. He is a right handed golfer. It
    was essential to him with the limited movement that he had prior to surgery
    that he be able to cock his left wrist to play and teach golf.

[25]

Read
    in context, the meaning of this passage is clear. The trial judge is saying
    that in addition to the fact the Plaintiff had no movement in his wrist, a condition
    she had just described as preventing Mr. Solomon from playing golf, he also
    lost functional use of his fingers because of the RSD. That too meant that he
    could not play golf, but as she had already established and then repeated, the
    total wrist fusion surgery was enough on its own to prevent Mr. Solomon from
    playing and teaching golf.

[26]

Dr.
    Abughaduma also placed heavy reliance on the passage in which the trial judge
    expressed her general damages findings:

I conclude that the general damages in the amount of $20,000.00,
    is fair and reasonable. The Plaintiff went through two surgeries. His hand
    function improved after the second surgery, but has not improved to his
    functioning prior to the surgery. The Plaintiff had serious increased pain
    following the surgery. The pain was for at least two years after the surgery
    was worse than his pre-operative state, in spite of the Plaintiff taking
    significant doses of Percocet medication. The Plaintiff lost his quality of
    life as a golf teacher and respected golfer. Today, he cannot play golf. He
    became socially isolated, and embarrassed to meet people he knew in his former
    life. As he lost his source of income, he lost his condominium. He is now
    living in his sons basement.

[27]

It
    can be credibly argued that by including a reference to impaired hand function,
    a symptom of RSD, the trial judge may have allowed her RSD findings to leak
    into her general damage assessment. However, it cannot be credibly argued that the
    RSD symptoms was
the
damage she found. This passage must be read in
    context, and the trial judge had said repeatedly that Mr. Solomon lost his
    ability to play golf because of the total wrist fusion that Dr. Abughaduma
    performed without his informed consent. The evidence also established that
    after the second surgery to remove the metal plate, Mr. Solomons wrist
    remained immobile, and at no point did the trial judge ever suggest that the
    RSD caused or even contributed to that loss of mobility. Moreover, although not
    definitive, the trial judge had already said that her findings do not depend on
    the failure to warn about the RSD symptoms as there were many other problems
    with the scope of the disclosure that were clearly raised and argued. Finally,
    the RSD symptoms are not required to explain the relatively modest general
    damage award of $20,000 for pain and suffering arising from two surgeries, the
    loss of the ability to golf, and the social isolation and embarrassment that
    came with it, all of which are unequivocally causally linked to the failure to
    warn Mr. Solomon that the surgery would immobilize his wrist. In all of the
    circumstances, a finding that the trial judge erred in applying the law of
    causation is not realistic.

[28]

Nor
    would I re-adjust the general damage award to remove any influence that RSD symptoms
    arguably had on the general damage assessment. I would not do so, even on the
    assumption that Dr. Abughadumas submission is correct that damages for RSD
    cannot properly be awarded in the circumstances of this case. For the reasons
    given, a fair contextual reading of the trial judges general damage passage is
    that although she mentioned the limited hand function in passing when
    describing the effect of the surgeries, her general damage assessment is
    premised on the pain and suffering from the surgeries and the sequalae of the
    incapacity to golf that total wrist fusion caused.

[29]

I
    would therefore dismiss the causation appeal.

C.

Did the trial judge misapprehend or improperly reject Dr. von Schroeders
    evidence?

[30]

Dr.
    von Schroeder, called by Dr. Abughaduma, testified that total wrist fusion
    surgery would improve Mr. Solomons golf game. Dr. Abughaduma contends that the
    trial judge erred in rejecting this evidence by: (1) rejecting it because it
    was not contained in Dr. von Schroeders expert report which was never admitted
    as evidence; and (2) mischaracterizing the evidence. The mischaracterization
    argument takes issue with the trial judges conclusion that Dr. von Schroeders
    opinion was a general one, arrived at without taking into account the unique aspects
    of Mr. Solomon as a professional golf teacher and hustler. Relatedly, Dr. Abughaduma
    urged before us that the only expert evidence before the court was that Mr.
    Solomons total wrist fusion would not prevent him from golfing.

[31]

The
    submission that the trial judge rejected Dr. von Schroeders opinion because it
    was not contained in his expert report is too simplistic. The relevance she gave
    the written report was more subtle and damning, and in no way improper. She
    found that, in contrast to his careful and fairly worded written report, Dr. von
    Schroeder lost his bearing as an expert witness and became an advocate in his
    oral testimony. The expert report was properly before the trial judge to be
    used in evaluating the credibility of Dr. von Schroeders in court testimony
    and she committed no error in doing so.

[32]

In
    contrast, there is some basis for the submission that the trial judge failed to
    appreciate that Dr. von Schroeder affirmed his opinion even after confronted
    with the fact that Mr. Solomon made his living as a golfer. In this sense, she
    mischaracterized his opinion as a generalization made without taking into
    account the unique aspects of this particular patient. Yet I would not allow
    the appeal because of this. In a devastating critique of his evidence, the
    trial judge gave myriad reasons for not accepting the evidence of Dr. von Schroeder.
    She found that Dr. von Schroeder offered opinions based on inaccurate factual
    assumptions and without adequate foundation (he offered opinions about the nature
    of Mr. Solomons arthritic condition without seeing x-rays or the patient), and
    that he exceeded his established expertise in even offering the opinion in
    question, related as it was to what a reasonable person in Mr. Solomons
    position would do. These shortcomings render the trial judges oversight of an
    answer provided in cross-examination immaterial.

[33]

Nor
    do I agree with Dr. Abughaduma that the trial judge erred by finding, contrary
    to the expert evidence, that the total wrist surgery prevented Mr. Solomon from
    playing golf. Even leaving aside that Dr. von Schroeder himself agreed in
    cross-examination that the left wrist cocks during a golf swing and that the
    wrist cock would be extremely important to Mr. Solomon in deciding whether to
    have the surgery, the trial judge was entitled to accept Mr. Solomons
    unambiguous and adamant testimony that it was impossible to swing properly or
    instruct golf with a totally fused wrist.

D.

Did the trial judge misapprehend Dr. Axelrods evidence?

[34]

If
    Mr. Solomons arthritis was advanced enough, alternative surgeries would not
    have been viable. There could therefore be no liability for failing to advise
    Mr. Solomon about non-viable surgeries. During cross-examination, Mr. Solomons
    expert, Dr. Axelrod, agreed that it was fair for Dr. Abughaduma to infer that
    Mr. Solomon had advanced osteoarthritis. The trial judge did not include this
    answer in summarizing Dr. Axelrods evidence. Dr. Abughaduma contends that this
    is a fatal error, since, if credited, this answer undermines this theory of
    liability.

[35]

I
    do not agree. Dr. Axelrods position was that Mr. Solomons arthritis was
    localized, not throughout the entire wrist. Dr. Axelrods concession must be
    understood in that context. Even though it was fair to conclude that Mr.
    Solomons arthritis was severe in that location, that would not have altered
    Dr. Axelrods position, accepted by the trial judge, that the surgical
    alternatives were viable.

E.

Did the trial judge misapprehend Mr. Solomons complaint, thereby
    failing to properly analyse the defence theory of hindsight?

[36]

Dr.
    Abughadumas position at trial was that Mr. Solomon never complained about the
    total wrist fusion surgery and that his evidence that he did so is distorted by
    hindsight; his real complaint was that Dr. Abughaduma botched the surgery.

[37]

In
    advancing this position, Dr. Abughaduma relied upon written complaints made by Mr.
    Solomon that do raise the botched surgery but not the total wrist fusion. As
    well, during cross-examination Mr. Solomon agreed with a suggestion that he
    complained about the surgery being botched but the trial judge did not address
    this response in her reasons.

[38]

This
    hindsight line of attack was important to the defence strategy because, if
    true, it could cast doubt on Mr. Solomons claim that he was not told that his
    wrist would be fused. It would also show that Mr. Solomons concern was with
    the outcome rather than the type of procedure, and that he would have followed
    through with the operation even if properly warned. Despite indicating that he
    was not contesting the failure to warn finding on appeal, Dr. Abughaduma did
    not abandon this ground of appeal, and so I will address it.

[39]

At
    bottom, this is not a misapprehension of evidence challenge, as Dr. Abughaduma
    claims. It is a challenge made to the factual finding of the trial judge to
    accept Mr. Solomons evidence that he complained about his unexpected total
    wrist fusion surgery loud and clear. This was a credibility finding that the
    trial judge was entitled to make, and she gave cogent reasons for why she
    preferred the testimony of Mr. Solomon about what was said during the follow up
    meetings to Dr. Abughadumas recall.

[40]

In
    coming to that decision, the trial judge was not obliged to refer to Mr.
    Solomons cross-examination answer. In any event, it is controversial whether
    that answer bears the probative value that Dr. Abughaduma seeks to assign it.
    The answer was not an unequivocal acknowledgement by Mr. Solomon that botched
    surgery was his only complaint. He was responding to leading questions that,
    fairly read, can be taken to have been framed as pertaining to a particular complaint.
    In my view, an answer would have to be much clearer than the one at issue here
    before a trial judge would be obliged to include it in her reasons, and to treat
    it as an acknowledgement that the real complaint is not the one that is being
    advanced at trial.

[41]

I
    would dismiss this ground of appeal.

CONCLUSION

[42]

I
    would therefore dismiss the appeal. Costs submissions are to be received within
    10 working days of the release of this decision, not to exceed 5 pages and to
    be accompanied by a costs outline.

Released: BZ August 29, 2019


David M. Paciocco J.A.
I agree. Harvison Young J.A.
I agree. B. Zarnett J.A.


