PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION

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1 Date: Docket: AD-0745 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION BETWEEN: CAROL BRYANT APPELLANT AND: NORMAN FENTON RESPONDENT Before: The Honorable Chief Justice N.H. Carruthers The Honorable Mr. Justice G.E. Mitchell The Honorable Mr. Justice J.A. McQuaid Patrick L. Aylward Alan K. Scales, Q.C. Place and Date of Hearing Place and Date of Judgment Written Reasons by: The Honorable Mr. Justice G.E. Mitchell Counsel for the Appellant Counsel for the Respondent Charlottetown, Prince Edward Island June 30, 1998 Charlottetown, Prince Edward Island September 16, 1998 Concurred in by: The Honorable Chief Justice N.H. Carruthers Dissenting: The Honorable Mr. Justice J.A. McQuaid

2 CAROL BRYANT AND NORMAN FENTON (15 pages) Before: Carruthers, C.J.P.E.I.; Mitchell and McQuaid, JJ.A. Heard: June 30, 1998 Judgment: September 16, 1998 Date: Docket: AD-0745 Registry: Charlottetown APPELLANT RESPONDENT APPEAL FROM ORDER ALLOWING MOTION FOR NONSUIT The majority (McQuaid J.A. dissenting) of the Appeal Court upheld the trial judge s decision to allow the nonsuit motion on the basis that there was no evidence from which a trier of fact could reasonably make findings on some essential element of the appellant s claim. CASES CONSIDERED: Hyndman v. Jenkins (1981), 18 C.P.C. 303 (P.E.I.S.C.-T.D.); Ward v. Harris Projects Ltd. (1989), 73 Nfld. & P.E.I.R. 11 (P.E.I.S.C.-T.D.); McKenna s Express Ltd. v. Air Canada, [1992] 1 P.E.I.R. 249 (P.E.I.S.C.-T.D.); MacDougall v. St. Peters Bay (Community) (1992), 100 Nfld. & P.E.I.R. 45 (P.E.I.S.C.- T.D.); J.W. Cowie Engineering Limited v. Allen, Smith and Allen, Keeping and Smith (1982) 52 N.S.R. (2d) 321 (N.S.C.A.); Wentzell v. Spidle (1987), 81 N.S.R. (2d) 200 (N.S.C.A.); Robichaud v. Bruce, [1988] N.S.J. No. 134 (Q.L.)(N.S.C.A.); Turner v. Nova Scotia (Attorney-General), [1993] N.S.J. No. 201 (Q.L.) (N.S.C.A.); Herman v. Woodsworth, [1998] N.S.J. No. 38 (Q.L.)(N.S.C.A.); Hopp v. Lepp, [1980] 2 S.C.R. 192 (S.C.C.); Riebl v. Hughes, [1980] 2 S.C.R. 880 (S.C.C.); Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 (S.C.C.); Arndt v. Smith, [1997] 2 S.C.R. 539 (S.C.C.); Barrett et al. v. Gaudet (1995), 138 N.S.R. (2d) 178 (N.S.C.A.) RULES CONSIDERED: Prince Edward Island Rules of Civil Procedure, Rule TEXTS CONSIDERED: The Law of Evidence in Civil Cases, Sopinka, and Lederman (Butterworths, 1974); Cross on Evidence, 4th ed., (Butterworths) Patrick L. Aylward, for the appellant Alan K. Scales, Q.C., for the respondent

3 MITCHELL J.A.: [1] This appeal is from an order of March 18, 1998, allowing the respondent physician s motion for nonsuit in an action against him for damages resulting from a serious eye injury the appellant sustained during a surgical procedure he performed on her to relieve a sinus condition. [2] The appellant s claim was not based on negligent performance of the surgery but upon an alleged failure of the respondent to properly inform her about the material risks inherent in the procedure. [3] The trial judge allowed the nonsuit motion because he found there was no evidence adduced concerning two essential ingredients of such a claim. Specifically, he found there was no evidence from which a trier of fact could reasonably infer that what occurred was a material risk of the surgical procedure involved, and no evidence that the bad result she suffered was something the respondent should have warned the appellant about. [4] I agree with the trial judge that proof of these is essential to sustain a claim based on failure to disclose, and I agree with him there was no evidence from which a trier of fact could reasonably find them present. [5] The appellant contends that the serious consequences of the surgical procedure are in themselves evidence of a material risk that ought to have been disclosed. The fallacy of this argument is that it equates result with risk. [6] The appellant relies heavily on the following statement from Reibl v. Hughes, (1980), 114 D.L.R. (3d) 1 (S.C.C.) at p.5: The Court in Hopp v. Lepp also pointed out that even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet if its occurrence carries serious consequences, as for example, paralysis or even death, it should be regarded as a material risk requiring disclosure. However, in my view this passage is of no assistance to the appellant in the absence of some evidence from which a trier of fact could reasonably find that the bad result in her case was one that might occur even if the surgery was competently performed. The bad result in itself does not provide such evidence as it could be due to negligence in the performance of surgery that ought to have been risk free if properly done.

4 Page: 2 [7] The appeal is therefore dismissed, and the respondent shall have his costs. The Honorable Mr. Justice G.E. Mitchell I AGREE WITH MR. JUSTICE MITCHELL: The Honorable Chief Justice N.H. Carruthers

5 Page: 3 McQUAID J.A. (Dissenting): [8] I have had an opportunity to read the draft reasons of my colleague Mitchell J.A., and with deference, I find I am unable to agree with the conclusion he has reached. BACKGROUND [9] The appellant, Carol Bryant brought an action against the respondent, Norman Fenton, alleging she did not provide informed consent when she agreed to undergo sinus surgery. She alleged there were risks associated with the surgery which Dr. Fenton was under a duty to disclose to her, he failed to fulfill the duty and this caused damage to her eye. At the trial Ms. Bryant gave evidence, as did her spouse, her family physician and a friend. There was also documentary evidence, including Dr. Fenton s notes and ASummary Sheet,@ his AOperation Report@ as well as the AProgress Reports@ prepared at the hospital where the surgery was performed. Following the presentation of this evidence, Dr. Fenton s counsel made a motion for nonsuit. The trial judge allowed the motion and dismissed the claim of Carol Bryant. She now appeals from that decision which is reported at (1997) 152 Nfld. & P.E.I.R. 306 and (1997) 36 C.C.L.T. (2d) 144. EVIDENCE [10] For a lengthy period of time Carol Bryant had suffered from chronic sinusitis and had been treated by her family doctor with various medications. She was eventually referred to Dr. Fenton who is an ear, nose and throat specialist. After also treating her condition with medications for a period of time, Dr. Fenton recommended surgery to clean the sinuses. Although the surgery is considered to be elective, Carol Bryant s evidence is that Dr. Fenton advised her she had to undergo the surgery if she wanted her condition to improve. [11] Carol Bryant testified Dr. Fenton described the nature of the surgery, told her that the only risk of the surgery was the anaesthetic and that the only way something could go wrong in the surgery Awas if someone bumped his arm in the operating She also testified that she was prepared to accept the risk of the anaesthetic. [12] Ms. Bryant consented to have the surgery and it was performed by Dr. Fenton on February 17, Dr. Fenton s AOperation Record@ states at p. 3:...I then entered the sphenoid sinus without finding the sphenoid ostium but measuring carefully with the metal probe and encountered extreme polypoid thickened sphenoid sinus tissue so this was cleaned out with ethmoidal forceps. The sphenoid ostium was enlarged but most of the sphenoid wall was left intact. I encountered very brisk bleeding at this point. The area was temporarily packed with the Vaseline gauze pack. The bleeding stopped

6 Page: 4 temporarily.... On the right side the packing was removed. Again brisk bleeding was encountered and I was unable to stop it using suction cautery. Therefore, the area was packed fairly firmly with another piece of Vaseline gauze and this was tied across to the other sphenoidal and ethmoidal piece of packing. The right antrostomy was packed with Vaseline gauze and this piece tied to the one on the left.... The patient s face was washed and in doing so bluish discolouration and extreme tenseness and swelling of the right eye lids were noted with there being significant proptosis ecchymosis of the right orbit.... [13] According to the AProgress Notes@ Carol Bryant s right eye was bruised and swollen following the surgery. Dr. Fenton s AOperation Record@ at p. 1 notes the following as a complication of the surgery: COMPLICATIONS: Intra-operative hemorrhage and ecchymosis and presumed invasion of medial wall of right orbit with orbital swelling. [14] When Ms. Bryant was discharged from the hospital on February 25, 1987, Dr. Fenton s ASummary Sheet@ noted the complications of the surgery as ARight ocular damage.@ He also notes as follows:... The procedure was going quite well until the end of the procedure when the right sphenoethmol dectomy was being carried out and there was fairly brisk hemorrhaging from the region of the sphenoid or ethymoidal hair cells. I packed the nose fairly heavy on that side to control the hemorrhage and then immediately post operatively severe swelling of the right orbit was noted and most of the packing in the right side of the nose removed.... [15] Carol Bryant testified that at the time she had two children at home, ages 19 and 10. Prior to this surgery she had decided not to undergo other elective surgery, a tubal ligation, when advised of the consequent risks. Shortly before the surgery three members of her family had died, and there had been marital problems between her and her husband. She stated In her evidence that had she been informed of the risk of damage to her eye, she would have decided against having the surgery. [16] Carol Bryant s evidence with respect to her understanding of the risks was confirmed by her husband and her friend, Joan Whynott. They both testified she had informed them that the only risk of the surgery was the anaesthetic and the chance of someone bumping Dr. Fenton s arm in the operating room.

7 Page: 5 [17] Ms. Bryant now claims her vision has been damaged and her eye is disfigured. This, she says, has resulted in a loss for which Dr. Fenton is liable because the possibility of this damage to her eye was a risk which he was obligated to disclose to her prior to her consenting to undergo the surgery and his failure to so disclose is the cause of the injury which gives rise to her loss. TRIAL JUDGE S DECISION [18] The trial judge found there was no evidence from which a trier of fact may infer that the invasion of the orbit of the eye and the haemorrhaging, both of which unquestionably occurred in the performance of the sinus surgery were a Adefinite risk@ of such surgery nor was there any evidence that these occurrences, or any other particular risk, had materialized to cause the damage to the plaintiff s eye. The trial judge also found there was no evidence from which a trier of fact may infer that the disclosure of the risk of an invasion to the orbit of the eye and the haemorrhaging, in the course of performing the sinus surgery, were risks which should have been disclosed to the defendant by the plaintiff. All this evidence, the trial judge found, would normally be adduced from medical experts and as none were called to testify as part of Carol Bryant s case, she had failed to establish the essential criteria from which a trier of fact may infer she had a claim against Dr. Fenton based on the lack of informed consent. [19] The essence of trial judge s decision on the nonsuit motion made by Dr. Fenton s counsel is set forth in paragraph six of his reasons. He stated: I have concluded that the defendant s motion must succeed. Upon application of the governing legal principles to the evidence adduced in the trial, the plaintiff has failed to bring any evidence regarding two essential criteria regarding any case which could in the circumstances give rise to liability on the defendant. First, there is no evidence that the cause of the condition which resulted from the surgery was a definite risk of the procedure; indeed, there is no evidence that a particular risk materialized to cause the plaintiff s condition. Second, there is no evidence that disclosure of that risk should have been made as part of the defendant s duty to inform. Each criterion needs to be satisfied. The burden of proof for both criteria is on the plaintiff. Such evidence would usually be expected to be found in, or supported by, expert medical testimony.

8 Page: 6 DISPOSITION [20] I would allow the appeal. The trial judge erred in allowing the motion for nonsuit and in dismissing the appellant s claim. Specifically, the trial judge erred in finding that medical evidence was necessary to establish a prima facie case in an action based on the lack of informed consent. As well, the trial judge erred in applying the test for granting a nonsuit motion in that he decided whether the necessary inferences ought to be drawn from the evidence and not whether they may be drawn from the evidence. [21] The procedure on a nonsuit motion is governed in this jurisdiction by Rule of the Rules of Court which provides as follows: At the close of the plaintiff s case, the defendant may, without being called upon to elect whether he will call evidence, move for dismissal of the proceeding on the ground that upon the facts and the law no case has been made out. Although the Rules of Court now in effect in this jurisdiction were, for the most part, adopted in 1990 from those applicable in the Province of Ontario, Rule is not present in the Ontario Rules. It is a carryover from the Rules of Court in effect in this jurisdiction from 1977 to 1990, which were adopted from those applicable in the Province of Nova Scotia. In those Rules of Court, Rule was Rule It continues in Nova Scotia as Rule [22] Prior to the decision of the trial judge in this case, the Rule was considered and applied by the Trial Division of this Court in the following cases: Hyndman v. Jenkins (1981), 18 C.P.C. 303; Ward v. Harris Projects Ltd. (1989), 73 Nfld. & P.E.I.R. 11; McKenna s Express Ltd. v. Air Canada, [1992] 1 P.E.I.R. D24; and MacDougall v. St. Peters Bay (Community) (1992), 100 Nfld. & P.E.I.R. 45. [23] The Nova Scotia Court of Appeal has considered the Rule in these decisions: J.W. Cowie Engineering Limited v. Allen, Smith and Allen, Keeping and Smith (1982) 52 N.S.R. (2d) 321; Wentzell v. Spidle (1987), 81 N.S.R. (2d) 200; Robichaud v. Bruce, [1988] N.S.J. No. 134 (Q.L.); Turner v. Nova Scotia (Attorney-General), (1993), 122 N.S.R. (2d) 118; and Herman v. Woodsworth, [1998] N.S.J. No. 38 (Q.L.). [24] All of the above cases cite the following passage from The Law of Evidence in Civil Cases, Sopinka, and Lederman (Butterworths, 1974) at p.521 as a correct statement of the law with respect to the role of the trial judge in considering a motion for nonsuit. This passage reads as follows:... If such a motion is launched, it is the judge s function to determine whether any facts have been established by the plaintiff from which liability, if it is in

9 Page: 7 issue, may be inferred. It is the jury s duty to say whether, from those facts when submitted to it, liability ought to be inferred. The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted, to satisfy a reasonable man. He must conclude whether a reasonable jury could find in the plaintiff s favour if it believed the evidence given in trial up to that point. The judge does not decide whether the jury will accept the evidence, but whether the inference that the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it. This decision of the judge on the sufficiency of evidence is a question of law; he is not ruling upon the weight or the believability of the evidence which is a question of fact. Because it is a question of law, the judge s assessment of the probative sufficiency of the plaintiff s evidence, or the defendant s evidence on a counterclaim for that matter, is subject to review by the Court of Appeal. [25] In J.W. Cowie Engineering Limited supra at pp. 334 and 335, supra, Jones J.A. for the majority, referred to a passage from Cross on Evidence, 4th ed., which addresses the rule with respect to the consideration of a nonsuit motion and it provides as follows: The extent of this method of control increased during the nineteenth century, for, as Willes, J., said in Ryder v. Wombwell (1868), L.R. 4 Exch. 32, at p.39: It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge (subject of course to review) is... not whether there is literally no evidence but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. The test to be applied by the judge in order to determine whether there is sufficient evidence in favour of the proponent of an issue, is for him to enquire whether there is evidence which, if uncontradicted, would justify men of ordinary reason and fairness in affirming the proposition which the proponent is bound to maintain, having regard to the degree of proof demanded by the law with regard to the particular issue. This test is easy to apply when the evidence is direct, for the question whether witnesses are to be believed must be left to the jury, but it is necessarily somewhat vague when circumstantial evidence has to be considered. In that case, little more can be done than inquire whether the proponent s evidence warrants an inference of the facts in issue, or whether it merely leads to conjecture concerning them. Although the judge may withdraw an issue from the jury of his own motion, questions of the sufficiency of evidence are usually raised on a submission that there is no case to answer made by the opponent of the issue. When ruling on such a submission, the judge assumes that the proponent s witnesses are telling the truth in cross-examination, as well as in their evidence-in-chief, and on matters which are unfavourable to the proponent, as well as those which are in his favour. He may rule in favour of the submissions either because the

10 Page: 8 proponent s evidence discloses no case as a matter of law or else because of the weakness of the proponent s evidence. If the judge rules against the submission, the issue must be determined by the jury, but, even when the opponent calls no evidence, their decision will not necessarily be in favour of the proponent. The jury may disbelieve the testimony given on his behalf, or, if they do accept it, they may not be prepared to draw the requisite inference. [26] In summary, the role of the judge in deciding a motion for nonsuit is to determine whether there is some evidence adduced by the plaintiff from which a reasonable trier of fact, whether it is a jury or a judge sitting without a jury, may infer the liability of the defendant. It is for the trier of fact, and not the judge hearing the motion for nonsuit, to determine whether to accept the evidence and to determine whether the inference which the plaintiff asks be drawn from the evidence ought to be drawn from the evidence. [27] The question as to whether a prima facie case has been met is a question of law as the issue is the probative sufficiency of the evidence and not the weight or credibility of the evidence, which is a question of fact. Accordingly, the trial judge s decision is clearly reviewable on appeal. See: Herman v. Woodworth supra, at para 4. [28] The issue which arises on this appeal is whether there was some evidence, if accepted, from which a reasonable trier of fact may draw the following inferences: (1) that the appellant suffered damage to her eye as the result of the sinus surgery; (2) that such damage was caused by the failure of the respondent to fulfill his duty to disclose to the appellant there was a risk that, in performing such surgery, the orbit of the eye could be invaded resulting in haemorrhaging; and (3) that if the appellant had been informed of this risk she would have withheld her consent to the surgery. [29] Informed consent is really nothing more than another way of saying a doctor has a duty to disclose to the patient certain risks surrounding the medical procedure being undertaken because, if the patient had been informed, he or she may not have consented to the procedure. In Hopp v. Lepp, [1980] 2 S.C.R. 192 (S.C.C.) at p. 196, Laskin C. J., for the Court, stated:...it follows, therefore, that a patient s consent, whether to surgery or to therapy, will give protection to his surgeon or physician only if the patient has been sufficiently informed to enable him to make a choice whether or not to submit to the surgery or therapy. The issue of informed consent is at bottom a question whether there is a duty of disclosure, a duty by the surgeon or physician to provide information and, if so, the extent or scope of the duty. [30] A patient bringing a claim against a doctor based on a lack of informed consent bears the burden of establishing, on a balance of probabilities, that an unexpected occurrence in the course of a medical procedure, was a risk which the doctor was under a duty to disclose to the patient and the failure of the doctor to so disclose was the cause of the patient suffering the condition which gives rise to the patient s loss. To establish the

11 Page: 9 causal link the patient must also show, from the perspective of a reasonable patient, that the unexpected occurrence was a material risk of the medical procedure which, if disclosed to a reasonable patient, would have prompted that reasonable patient to withhold consent from the doctor to perform the medical procedure. [31] The test for determining causation where the action is grounded on informed consent has been the subject of a number of decisions of the Supreme Court of Canada. In Hopp v. Lepp, supra, Laskin C.J. states he finds it difficult to conclude a probable risk might not also be a material risk in the sense of the objective standard that a risk is considered material if the doctor knows or should know, based on his knowledge of the patient s circumstances, the patient would be likely to attach significance to it when considering whether to have the surgery. See: p.208. At pp he says this invites a finding of fact upon which medical evidence of the judgment to be exercised by the doctor would be admissible but not determinative. At p.209 he states:...indeed, since a particular patient is involved upon whom particular surgery is to be performed or particular therapy administered, and it is a duty of disclosure to him that affects the validity of his consent, evidence of medical experts of custom or general practice as to the scope of the disclosure cannot be decisive, but at most a factor to be considered. [32] He goes on to discuss the classification of risks. Possible risks, whose consequences would be grave, could well be regarded as material. He concludes with this statement at p. 210: In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case. [33] In Riebl v. Hughes, [1980] 2 S.C.R. 880, Laskin C. J., again writing for the Court, refers to Hopp v. Lepp, supra, and states at pp : The Court in Hopp v. Lepp, supra, also pointed out that even if a ceratin risk is a mere possibility which ordinarily need not be disclosed, yet if its occurrence carries serious consequences, as for example, paralysis or even death, it should be regarded as a material risk requiring disclosure. [34] Laskin C.J. states that an objective test is to be employed in determining whether the failure to disclose is the cause of the condition of the plaintiff. He specifically rejects the subjective test. He states at p.897:

12 Page: An alternative to the subjective test is an objective one, that is, what would a reasonable person in the patient s position have done if there had been proper disclosure of the attendant risks.... [35] Also see pp where he states: I think it is a safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material. And so too are any special considerations affecting the particular patient.... The adoption of an objective standard does not mean that the issue of causation is completely in the hands of the surgeon. Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it.... [36] Also at p.895 he states: The materiality of non-disclosure of certain risks to an informed decision is a matter for the trier of fact, a matter on which there would, in all likelihood, be medical evidence but also other evidence, including evidence from the patient or from members of his family.... [37] While expert medical evidence may be a factor in determining the materiality of a certain risk, it is not determinative. All the evidence is to be weighed by the trier of fact on the proper civil standard and the verdict reached. The issue is clearly for the trier of fact. [38] The next case is the Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 (S.C.C.) where Cory J. for the majority, explains Riebl v. Hughes. He states at p.133: Riebl v. Hughes, supra, indicates that the disclosure which must be made to a patient will often be more than that which the medical profession might consider appropriate to divulge. Although expert medical evidence on this issue is still relevant, it is no longer decisive in determining whether or not sufficient information was given to a patient to enable that patient to make an informed consent. The test now focuses on what the patient would want to know... [39] Therefore, while medical evidence on the issue of disclosure is relevant, it is not the determining factor in deciding whether the patient was in possession of sufficient information to provide an informed consent. The test, according to Cory J., now focuses on what a reasonable patient would want to know.

13 Page: 11 [40] Finally, in Arndt v. Smith, [1997] 2 S.C.R. 539 (S.C.C.), Cory J. again reviews Riebl v. Hughes, supra, and at p. 546 he states that A... a purely objective test or standard could result in there being undue emphasis placed on the medical evidence essentially resulting in a test which defers completely to medical wisdom.@ He then goes on to explain the Amodified objective test for causation@ of Laskin C. J., and he concludes with this statement at p.547: These words are as persuasive today as they were when they were written. The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any particular concerns of the patient and any special considerations affecting the particular patient in determining whether the patient would have refused treatment if given all the information about the possible risks. [41] Therefore, whether a risk is material and one which the doctor was under a duty to disclose to the patient and whether the patient would have withheld his or her consent to the medical procedure, having been made aware of the risk, is to be determined on a combination of objective and subjective factors. The particular concerns of the patient and the patient s circumstances as they are known or as they ought to be known to the doctor, are factors to be considered, together with objective medical evidence, in determining whether the doctor s failure to disclose a certain risk is the cause of the patient s injury. No one set of factors, objective or subjective, is to be determinative of the issue. [42] To make out a prima facie case sufficient to have this case go to a trier of fact, the appellant, as plaintiff, had to establish there was some evidence from which the trier of fact may infer that the penetration of the orbital cavity and the resulting haemorrhage was a risk of the sinus surgery, that this was a risk which should have been disclosed by the respondent to the appellant and if disclosed, the appellant would have decided to withhold her consent to the surgery. In my view, the appellant did adduce such evidence and the trial judge erred in finding she did not. [43] The trial judge found the appellant had not established the occurrences were known risks of a properly performed sinus surgery and that medical evidence was necessary before a finding could be made there was some evidence from which it may be inferred what occurred in the course of her sinus surgery was a risk of that surgery. Relying on the statement of Laskin C.J. at pp of the decision in Riebl v. Hughes, supra and quoted in paragraph 26 of these reasons, the appellant now argues that because the consequences of the respondent penetrating the orbit of the eye and the haemorrhaging which resulted are serious, the risk of this occurring, even though it might only be a mere possibility, should be regarded as material and should have been disclosed to the appellant. In the context of this appeal, I agree with the appellant s submission.

14 Page: 12 [44] The issue before the trial judge on the motion for nonsuit was whether there was some evidence adduced by the appellant, if accepted, from which a trier of fact may draw the inference that the result of the surgery was a risk which should have been disclosed to the appellant and if disclosed, the appellant would have withheld her consent to the surgery. ARisk@ is defined in The Concise Oxford Dictionary as, Aa chance or possibility of danger, loss, injury, or other adverse consequences.@ The fact the surgery resulted in an injury to the eye is some evidence, if accepted, from which a reasonable trier of fact may infer that, even in a properly conducted surgery, such an injury was a possibility. If a plaintiff must adduce expert medical evidence to establish that un unexpected occurrence in the course of a properly conducted medical procedure is a risk of that procedure then, effectively, expert medical evidence becomes determinative in proving a case grounded on the lack of informed consent. The Supreme Court of Canada has held expert medical evidence is not determinative of the materiality of non disclosure of certain risks. Similarly, it should not be determinative of whether an unexpected event occurring during a properly conducted medical procedure is a risk. [45] The trial judge also found there was no evidence from which a trier of fact may infer a particular risk materialized to cause injury to the plaintiff. Again, he concluded that such evidence would be expected to be adduced from medical experts or supported by medical experts. I cannot agree. As I have stated, there was some evidence adduced by the appellant, if accepted, from which it may be inferred by a reasonable trier of fact that the penetration of the orbital cavity was a risk of the sinus surgery, and there is some evidence this did cause an injury to the appellant s eye. [46] Finally, the trial judge found that while the motion for nonsuit did not A... involve consideration of causation...,@ medical evidence was necessary for the appellant to establish a prima facie case that if the risks had been disclosed to her she would have withheld her consent to the surgery. At paragraph 20 of his reasons the trial judge stated:... Without entering the purview of weighing the evidence, it appears to me that in the absence of medical evidence beyond the factual evidence which the plaintiff adduced it could reasonably be concluded that while there is some evidence on this criteria, that since there is no medical evidence, which is one of the kinds of evidence which would be required in the circumstances, there is no evidence upon which a jury properly instructed could conclude that a reasonable person in the plaintiff s position would have foregone the operation. (My emphasis) [47] Despite the trial judge s statement he is not going to weigh the evidence, he embarks upon that exact venture. He finds that while there is some evidence a reasonable patient in the position of the appellant would have withheld consent to the surgery if advised there was a risk of penetration of the orbital cavity and resulting damage to the eye, he goes on to conclude that, because there is no medical evidence on this issue, the

15 Page: 13 appellant has failed to establish a prima facie case. He weighs Asome evidence on this criteria@ against the absence of medical evidence and concludes there is no evidence to establish a prima facie case. It was not the trial judge s function to weigh the evidence in this manner and furthermore, based on the modified objective test to causation, medical evidence, although a factor to be considered, is not determinative of the issue. Once the trial judge found there was some evidence a reasonable patient might have withheld consent, if advised of the risk, his role was to send the issue to the trier of fact where this evidence could be weighed against the lack of medical evidence and a determination made on the balance of probabilities. [48] There was some evidence, if accepted, from which a reasonable trier of fact may infer that had the appellant, in circumstances which were known or ought to have been known to the respondent, been advised of the risk of penetration of the orbital cavity she would have withheld her consent to the surgery. The evidence of the plaintiff is that she had two children at home, and she also had refused previous elective surgery when advised there could be complications. She was working in occupations which required the use of healthy eyes and had she been informed of this risk she would have been afraid to undergo the surgery. It is not for the trial judge to weigh this evidence or assess the credibility of the appellant at this stage; however, this is some evidence, if it is accepted or believed by a trier of fact, upon which the trier of fact may infer that a reasonable person in the position of the plaintiff would have refused to undergo the sinus surgery if she had been fully informed of the risk that the orbit of the eye could be invaded in the course of the sinus surgery. [49] The trial judge s position is that a plaintiff is expected to adduce medical evidence before he or she will be successful in establishing a prima facie case against a medical doctor grounded on the lack of informed consent. The clear implication and result of upholding this decision is that it is impossible to establish a prima facie case based on the lack of informed consent without expert medical evidence. Consequently, patients bringing such an action are totally in the hands of the medical experts, a situation which the Supreme Court of Canada directed courts to avoid. [50] The respondent argues that to decline the nonsuit motion and to allow the appellant s case to go forward to the trier of fact without medical evidence on the elements necessary to establish liability on the basis of the lack of informed consent, effectively shifts the burden of proof to the doctor after the patient establishes a bad or unsatisfactory result from the surgery or medical procedure. This, the respondent argues, would open a APandora s box@ of frivolous lawsuits against doctors and surgeons in particular. While it is attractive to advance an argument that raises, in a society of publicly funded health care, the spectre of the financial burden of frivolous lawsuits against doctors, such an argument has no validity. The very evidence which may be sufficient to allow a plaintiff to succeed on a nonsuit motion may be insufficient to tip the balance of probabilities toward a finding of liability. The evidence of the plaintiff necessary to withstand the nonsuit motion need

16 Page: 14 only be some evidence from which the trier of fact may infer liability and not evidence upon which the trier of fact ought to infer liability. The failure of a defendant to sustain a nonsuit motion does not mean the burden shifts to the defendant to call evidence to prove he is not culpable. That would be tantamount to saying a defendant calls evidence in a civil case at the close of the plaintiff s case because after the plaintiff s evidence, the burden shifts to the defendant. Of course that is not correct; the burden remains with the plaintiff throughout. There is no risk the denial of a motion for nonsuit without medical evidence in the circumstances of this case, will unleash a flurry of frivolous lawsuits against medical practitioners. The law is clear that in cases where the patient seeks to establish liability of the doctor for an injury on the basis of the lack of informed consent, applying the applicable test adopted by the Supreme Court of Canada, the burden rests squarely with the patient, as plaintiff, to establish on a balance of probabilities that the failure of the doctor to fulfill the duty of disclosing certain risks is the cause of the patient s injury. [51] Should a motion for nonsuit fail a defendant doctor does not carry any burden to call evidence. It remains an option for the defendant doctor to close his or her case and argue that on a balance of probabilities the plaintiff has not discharged the burden of proving liability on the basis of the lack of informed consent. The plaintiff, while successfully defending a nonsuit motion, may not necessarily obtain a favourable verdict. The trial judge, as the trier of fact, may find the evidence adduced on behalf of the plaintiff unbelievable or unreliable or, possibly, the trial judge may accept the evidence of the plaintiff, yet not be prepared to draw the inferences requisite to establish the liability of the defendant on the basis of the lack of informed consent. This is put most succinctly in the final two sentences of the passage from Cross on Evidence, 4th ed., set forth in paragraph 25. I will repeat them here: If the judge rules against the submission, the issue must be determined by the jury, but, even when the opponent calls no evidence, their decision will not necessarily be in favour of the proponent. The jury may disbelieve the testimony given on his behalf, or, if they do accept it they may not be prepared to draw the requisite inference. [52] In conclusion, there was some evidence before the trial judge from which a reasonable trier of fact may infer the respondent was under a duty to disclose to the appellant that in the course of conducting the surgery there was a risk of invasion to the orbit of her eye and there was some evidence that if this risk had been disclosed, the appellant would have withheld her consent to the surgery. Accordingly, the trial judge erred in allowing the motion for nonsuit. Generally, the rule is that the matter should now be returned to the trial judge for the completion of the trial as the parties are to be restored to their position prior to the motion for nonsuit and the matter should proceed as if the trial judge had denied the motion. See: Barrett et al. v. Gaudet (1995), 138 N.S.R. (2d) 178 at 186 (N.S.C.A.). In this case, however, it would not be appropriate to remit the matter back to the trial judge because, in considering the motion for nonsuit and in deciding the

17 Page: 15 appellant had not established a prima facie case, it is my view he assessed and weighed the evidence adduced on behalf of the appellant. It would be more appropriate, in the circumstances, for the appellant to have a new trial before a different judge. See: Herman v. Woodworth, supra, at paras. 12 to 16. [53] I allow the appeal, order a new trial and award the appellant her costs throughout, to be assessed and payable forthwith. The Honorable Mr. Justice J.A. McQuaid