IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100707

Docket: S94770

Registry:
New Westminster

Between:

Lisa
Kern

Plaintiff

And

Margaret Forest,
Johanna Thomas,

Amynah
Somani, and Forest Chiropractic Inc.

Defendants

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

[1]          
This is an action for damages. The plaintiff Lisa Kern was a patient who
was treated by the defendant chiropractors. The plaintiff alleges that the treatments
were performed negligently, causing serious bodily harm.

[2]          
The defendant Amynah Somani’s name is misspelt as “Sommani” in the writ
of summons, statement of claim and other pleadings to date. I am amending the
style of cause to reflect the proper spelling of her name.

[3]          
In September 2003, Lisa Kern saw her physician, Benjamin Yokoyama,
complaining of left shoulder pain. Dr. Yokoyama referred her for chiropractic
treatment and she attended at the offices of Forest Chiropractic Inc., in Maple
Ridge, on October 3, 2003. She was treated by two chiropractors who regularly
practised there, the defendant Dr. Margaret Forest, and the defendant Dr. Johanna
Thomas. As well, she was treated by Dr. Amynah Somani, a locum hired by the
firm to relieve Dr. Forest during a vacation.

[4]          
After the treatments, Ms. Kern was diagnosed with spinal cord
compression, caused by a herniated cervical disc. A neurosurgeon performed a
discectomy on November 3, 2003, and removed the herniated disc. Ms. Kern
continues to have substantial pain today. She says she is unable to work.

[5]          
The test for professional negligence is four-fold: Keane v. Adams,
2002 ABQB 63 at para. 52, 309 A.R. 237. The plaintiff must establish:

1.         That there is a duty of care
owed by the defendants to the plaintiff;

2.         That there was a breach of that
duty of care and that the defendants failed to exercise the standard of care
required in the circumstances;

3.         That the plaintiff suffered
damages; and

4.         That the damages were caused by
the defendants’ breach.

[6]          
There is no dispute about the duty of care that the defendants owed to
the plaintiff. Moreover, the plaintiff clearly suffered damages. However, the
defendants dispute there was any breach of the duty of care or that they failed
to meet the standard of care. They dispute as well that the damages suffered by
the plaintiff resulted from the chiropractic care they provided. The position
of the defendants is:

9.         The defendants submit that at no time did they
breach the standard of care they owed to the plaintiff, that there was no want
of care on their part, and that their treatment of the plaintiff did not cause
her physical condition. The evidence demonstrates that the plaintiff in all
probability was suffering from a herniating cervical disc prior to her
involvement with the defendants; indeed a careful review of the evidence
demonstrates that it was likely the symptoms of that disc herniation which led
her, on her physician’s recommendation, to seek chiropractic care. The
subsequent deterioration of the plaintiff’s condition was entirely consistent
with the natural progression of a herniating disc.

10.       Moreover, the care
rendered by the defendants was completely appropriate. Their treatments of the
plaintiff were neither sufficient nor necessary to cause the plaintiff’s
current condition and that there should be no liability found against them.

[7]          
For the reasons that follow, I conclude that while the plaintiff’s symptoms
were aggravated by the chiropractic treatment, there was no breach of the
applicable standard of care on the part of the defendants. The harm suffered by
the plaintiff was not the result of any conduct below the standard of care the
defendants were required to meet.

The Plaintiff

[8]          
Ms. Kern was born in New Westminster in 1962, and went to high school in
Burnaby. She married Dan Kern on February 14, 1987. Their son Jordan was born
in August of 1988.

[9]          
After Jordan’s birth, Ms. Kern stayed at home for some eight years. She
returned to the workforce when their second child, Chelsea, began kindergarten.
The Kerns reside in Maple Ridge.

[10]       
The plaintiff then began working for Boyd Auto Body, her husband’s
employer, when she returned to the workplace. Her initial job was to “tag”
damaged vehicles, in order to bring business to the company. This was a
position where she was paid commission.

[11]       
She was hired as production co-ordinator in 1995. Eventually, her duties
increased and she became an assistant manager. Ms. Kern reported to Tom Allard,
the operations manager. She did estimating and much of the computer and
paperwork, banking and payroll.

[12]       
Mr. Allard was absent from time to time. During such periods, Ms. Kern
worked longer days. One of these absences was from July until early October
2003.

[13]       
Ms. Kern was well regarded as an employee. Her husband said that she was
adept at customer relations and that when Mr. Allard was away, she did
“absolutely everything”.

[14]       
Mr. Allard’s evidence is that Ms. Kern began as a
receptionist/administrator and gradually took on more responsibilities. He
described her as dependable, enthusiastic and cheerful. He said the business
scored very high with customers because of her.

[15]       
Mr. Allard said that when he came back to work in September 2003, Ms.
Kern was complaining of soreness in her neck.

[16]       
Ms. Kern described her life before October 2003 as “busy and happy”. She
engaged in activities most weekends, including skating, fishing, skidooing and
seadooing. She was an enthusiastic musician, playing the 12-string guitar. She
enjoyed designing and building a garden, although she looked to her husband to
perform the heavier chores.

[17]       
In the summer of 2003, Ms. Kern said she developed symptoms of pain and
discomfort. She described this as tension in her left shoulder blade. She
became uncomfortable by the end of a day of work. She ascribed these symptoms
to work activity such as multi-tasking and cradling the telephone with her neck.
On September 25, 2003, she attended a walk-in clinic. A Dr. Botting recommended
Ibuprofen.

[18]       
Ms. Kern decided to see her doctor, Dr. Benjamin Yokoyama. She attended
at his office on Friday, October 3, 2003. She reported pain along her left
scapula. His diagnosis was myocitis, an inflammation of the muscles of the
right shoulder. His clinical notes say “ISP X-ray” which he explained meant that
if symptoms persisted, he would order an x-ray. Dr. Yokoyama recommended she
see a chiropractor.

[19]       
Ms. Kern had never had chiropractic treatment. An acquaintance gave her
the name of the defendant group of chiropractors.

[20]       
She attended at the offices of the defendant, Dr. Johanna Thomas, on the
same day, October 3. She filled out a form. Ms. Kern wrote that she had “severe
pain in her left back @ shoulder blade”, then ticked boxes indicating areas of
difficulty:

·        
Headache;

·        
Neck pain;

·        
Tingling or numbness in arms or
hands;

·        
Shoulder, arm or hand painful;

·        
Sleeping problems, stiff/painful
joints.

[21]       
Dr. Thomas testified that her notes indicate Ms. Kern was complaining of
shooting pain in her left shoulder. It had started two weeks earlier. It was
gradual and “insidious”, by which she meant that there was no specific reason
for its onset. Ms. Kern told Dr. Thomas that it was aggravated by speaking on
the telephone, moving her neck, standing at her desk with her arms on the
counter, and playing the guitar. She said that coughing and sneezing were very
painful and that the pain was worse in the morning when she got out of bed.

[22]       
Dr. Thomas conducted a physical examination and noted several complaints
and restrictions on range of motion:

·        
When she extended her neck she “reproduced pain”.

·        
On turning her head from side to side her rotation was restricted
to the right and restricted and painful to the left.

·        
On palpation, Ms. Kern felt pain on the left at C2/3 and on the
right at C5/6 and T5/6.

·        
She had pain in her trigger points at her left levator.

[23]       
Dr. Thomas treated Ms. Kern with “ART” or active release therapy on her
left shoulder and cervical spine. This is a massage sort of treatment. Dr.
Thomas testified it was not normal to treat the patient on the first day, but
she did so because Ms. Kern was in such obvious discomfort.

[24]       
On October 4, Ms. Kern attended at the chiropractor’s office for x-rays.
The x-rays as interpreted by Dr. Thomas showed a C5/6 lordosis; a loss of the lordosis
curve forward; a severe loss of the height of the disc at C5/6; and, C5/6 severe
spondylosis, that is, signs of severe degeneration.

[25]       
Dr. Thomas did chiropractic adjustments on the plaintiff’s neck on
October 6, 7, 8, 9 and 11. The plaintiff testified these treatments gave her
some relief. Ms. Kern’s evidence is that they seemed to be helping for “a
portion of the day” but she would “seize up” when she awakened in the morning. Ms.
Kern reported to Dr. Thomas on October 8 and 9 that she was awakened in the
night by pain.

[26]       
On October 8, Ms. Kern was too sore to lie on her back. There was no
cervical spine adjustment that day.

[27]       
October 11 was Ms. Kern’s last treatment with Dr. Thomas. Dr. Thomas
left the office for a vacation. The office engaged the defendant Amynah Somani,
a locum.

[28]       
Dr. Somani treated the plaintiff on October 14. She recalls nothing unusual.
Dr. Somani testified she followed her standard treatment protocol: questioning
the patient as to her history; assessing her areas of restricted mobility in
the spine through palpation; and treating the areas she felt required treatment.

[29]       
Ms. Kern saw Dr. Yokoyama again on October 15, 2003. She complained of
ongoing pain in her upper neck and shoulder. On examination, he found
tenderness along her left scapula. His diagnosis was myofascial pain syndrome. He
described this as a condition where the muscles and underlying tissue are
painful. He referred her for an x-ray of her left shoulder.

[30]       
Ms. Kern was treated by Dr. Forest on October 16, 2003. Ms. Kern has no
recollection of this but it was acknowledged by Dr. Forest in her examination
for discovery evidence read in by the plaintiff.

[31]       
Ms. Kern was treated by Dr. Somani on October 17. There is some dispute
about what occurred.

[32]       
Ms. Kern testified her treatment by Dr. Somani “seemed rigid, maybe a
little offset”. This led to the following exchange:

The Court:       What do you mean, it seemed rigid and
offset?

Ms. Kern:        Well, she didn’t seem
confident with my head in her hands. That was my feeling that I got. That’s all
– you know, from that I – I could have been a little nervous because she didn’t
really make me feel secure. And then she proceeded to – I wouldn’t say she
rolled my head gently like Dr. Thomas did. I would say she rocked it a couple
of times and then she went for the manipulation one way. And I asked her to
stop. She said, why?  I said, because I can’t go the other way, can’t let you
do it.

[33]       
Ms. Kern testified that she stopped Dr. Somani from completing the
treatment:

It was feeling very different. I
felt something right away. I didn’t so much hear anything, I just felt something
right away. And like I said, I couldn’t let her go back the other way and it
just felt like something was wrong.

[34]       
Dr. Somani’s chart notes are inconsistent with this. They show cervical
adjustments were done to both sides.

[35]       
Dr. Somani testified she did an adjustment at C5/6 on the left side and
C3/4 on the right side. She denied that the plaintiff made any complaint during
the treatment. She said that if Ms. Kern had complained in the course of a
cervical adjustment, she would have made a note in her chart. Her evidence is
that nothing unusual happened.

[36]       
I prefer Dr. Somani’s recollection. It is unlikely that the events
described by the plaintiff would occur without Dr. Somani’s noting them. Dr.
Somani impressed me as a diligent and careful practitioner.

[37]       
Ms. Kern said that her treatment was at 2:30 p.m. Afterward, she drove home,
a distance of 2.5 kilometres. She said she was dizzy and “a little nauseous”
when she reached home. She removed her shoes and discovered that her right foot
was numb and very cold.

[38]       
Ms. Kern had been planning to attend a concert at the Commodore Ballroom
in Vancouver that evening. She called her friend, Johanne Foulds, and told her
she would not be going. Ms. Foulds encouraged her to come and said that she and
her husband would pick up the plaintiff and her husband. She eventually agreed
to go.

[39]       
Ms. Kern described herself as scared, nervous and unable to turn her
head. She said the 50 km drive to Vancouver was uncomfortable.

[40]       
The four of them went to dinner first. She said she was so stiff she
could not look down at her menu. Her arms, she said, were too weak to lift the
menu. They carefully made their way to the Commodore and attended the concert.

[41]       
Mr. Kern corroborated this. He said that when they found seats, Ms. Kern
was unable to turn her head to watch the performance. They turned her chair so
it directly faced the stage.

[42]       
The evidence of Ms. Foulds was confirmatory of this too. She said Ms.
Kern could not turn her head at all and any turning was at the waist. She and
her husband drove Mr. and Mrs. Kern home. Ms. Foulds testified she assisted the
plaintiff into her house.

[43]       
Ms. Kern testified that on the following day, Saturday, October 18,
2003, the numbness was up to her right knee. She thought it was simply a
pinched nerve. By Sunday, the numbness had risen to her buttocks. It continued
to rise to her torso.

[44]       
By Monday, October 20, the numbness was up to her chest. Ms. Kern went
to the chiropractor’s office and asked to see Dr. Forest. The receptionist
arranged for her to meet Dr. Forest.

[45]       
Ms. Kern testified she told Dr. Forest she felt something had gone wrong
the previous Friday. She reported headaches, neck pain and numbness up to her
chest.

[46]       
Dr. Forest assessed Ms. Kern and conducted a neurological examination. She
reached a working diagnosis of biomechanical facet dysfunction. She thought she
might be able to treat it. She did some mobilizing and light muscle work.

[47]       
Ms. Kern testified that Dr. Forest called Dr. Somani in during Ms.
Kern’s visit. She said Dr. Forest performed a cervical adjustment on her to
demonstrate the proper technique for Dr. Somani.

[48]       
Dr. Somani’s evidence is contrary to this. She testified that she went
into the treatment room and greeted Ms. Kern. She also said she agreed to Dr.
Forest taking over the treatment of Ms. Kern. But Dr. Somani denied she was
present for any treatment of Ms. Kern by Dr. Forest. She denied Dr. Forest
showed her how to do this treatment.

[49]       
Dr. Somani was not cross-examined with respect to these matters.

[50]       
Ms. Kern also testified Dr. Forest performed quite a violent
manipulation: Dr. Forest had her lie face down on the bed. Dr. Forest put her
knee in the centre of Ms. Kern’s back, put her hands on each shoulder and
lifted her torso off the bed. Dr. Forest’s answers that were read in from her
examination for discovery do not include any comment on this. Thus, Ms. Kern’s
evidence in this regard is uncontradicted.

[51]       
Ms. Kern saw Dr. Forest again on October 21. A neck manipulation took
place. Dr. Forest notes there was still numbness and her condition seemed worse.
She advised Ms. Kern to see her physician.

[52]       
Dr. Forest saw Ms. Kern in the morning of October 22. That afternoon,
Ms. Kern saw Dr. Yokoyama. His diagnosis was radiculopathy, which he described
as a pinched nerve. He said he saw no evidence of spinal cord compression.

[53]       
Dr. Yokoyama made a referral to a neurologist, a Dr. Knazan. This was
not an emergency referral as Dr. Yokoyama did not consider the matter to be
urgent. An appointment was made for December 10, 2003.

[54]       
Ms. Kern saw Dr. Forest again on October 22 and 23. There appear to have
been no further manipulations.

[55]       
Ms. Kern’s condition worsened over the October 25-26 weekend. She called
Dr. Yokoyama on October 26. He saw her the following day, Monday, October 27. He
arranged an urgent neurological consultation with Dr. Richard Grosch for
Wednesday, October 29.

[56]       
Dr. Grosch took a history and did a neurological examination. He
testified he found Ms. Kern distraught and in a relatively severe amount
of pain.

[57]       
After examining her he diagnosed Brown Sequard Syndrome. This is an
injury to the spinal cord on one side. It results in motor loss on the same
side as the injury and superficial sensory loss on the other side. He felt this
was secondary to a disc herniation.

[58]       
Dr. Grosch had her urgently admitted to Royal Columbian Hospital. He
spoke to the attending radiologist and the attending neurosurgeon. As a result,
an MRI was conducted. It showed a posterior central disc protrusion causing
severe cord compression at the C6/7 level. X-rays showed degenerative changes
at C5/6 and C6/7.

[59]       
On November 3, Dr. Winston Gittens, the attending neurosurgeon,
performed a cervical discectomy and fusion at the C6/7 level. Surgery revealed
the disc was extruded not merely protruded. That is, it amounted to a
sequestration and not simply herniation.

[60]       
Ms. Kern was discharged on November 5, 2003. Initially she required
a great deal of care from her family members.

[61]       
On November 11, she saw Dr. Reebye, a physiatrist who has directed her
rehabilitation. She underwent physiotherapy and a regimen of home exercises.

[62]       
In the spring and fall of 2005, Ms. Kern made two attempts to return to
work. Neither was successful. Many symptoms persist:  numbness in the feet,
neck soreness and so on.

[63]       
Dr. Elizabeth Zoffman, a psychiatrist, has examined her. She has
diagnosed major depression, chronic generalized anxiety and chronic pain
disorder.

[64]       
Dr. Reebye is not optimistic about Ms. Kern’s ability to work in
the future:

Ms. Kern will have difficulty returning to her job full time
as assistant manager and working in that capacity to age 65.

The above limitations are due to
pain, anxiety about the changes in her job and limited training [on] the
computer systems being used at the site of her work. She will require job modifications
and retraining in order to return to work.

Issues

[65]       
The following issues arise for determination:

1.         Did the defendants obtain the
informed consent of the plaintiff to their course of treatment?  If not, would
the plaintiff have consented to treatment if she had been fully informed of the
risks and alternatives?

2.         Did Dr. Somani’s treatment
cause the plaintiff’s injuries?

3.         Was Dr. Somani’s treatment
negligent and in breach of the applicable standard of care?

4.         Should an adverse inference be
drawn from Dr. Forest’s failure to testify?

5.         Was Dr. Forest’s conduct on and
after October 20 negligent?  If so, did this negligence cause the plaintiff’s
injuries?

1.         Did the
defendants have the informed consent of the plaintiff?

[66]       
The plaintiff argued that Dr. Thomas was under a duty to sufficiently inform
her that chiropractic manipulations of the cervical spine carried significant
risks. The plaintiff says Dr. Thomas failed to fulfill that duty. Ms. Kern
testified that she was not informed of the risk of spinal cord damage that is
associated with cervical spinal manipulation. Counsel argues that in light of
the severe degenerative changes discovered by Dr. Thomas, if Ms. Kern
had received the appropriate warnings no reasonable person would have undergone
the manipulations. Ms. Kern testified she would have sought physiotherapy
or some other form of treatment.

a)         Are
Chiropractors obliged to obtain informed consent from their patients?

[67]       
In Dickson v. Pinder, 2010 ABQB 269, Yamauchi J. held that the
same general principles of law which govern physicians and other health care
professionals apply to chiropractors:

16        Since courts have held
that chiropractors are treated like other "medical practitioners,"
the principles that relate to non-chiropractic medical professionals apply with
equal force to chiropractors, Heughan v. Sheppard, [2000] O.T.C. 413 at
para. 160 (Sup. Ct. J.).

[68]       
Although the issue of informed consent arises most frequently in the
context of the physician-patient relationship, it is well established that
other health care professionals have a similar duty of disclosure in respect of
treatment and procedures that they perform. In Mason v. Forgie (1986),
30 D.L.R. (4th) 548 (N.B.C.A.), leave to appeal ref’d [1987] S.C.C.A. No. 11,
the Court held that the jurisprudence relating to the issue of informed consent
enunciated by the Supreme Court of Canada applies to chiropractors.

b)         Informed Consent: General Principles

[69]       
Canadian health care professionals owe a duty to their patients to
disclose “the nature of a proposed operation, its gravity, any material risks
and any special or unusual risks attendant upon the performance of the
operation”: Hopp v. Lepp, [1980] 2 S.C.R. 192 at 210, 112 D.L.R. (3d)
67. A patient is entitled to know something about the procedure to be
performed, the likelihood of its success, and the risks involved in the
procedure. She is also entitled to know about alternative methods of treatment
or procedures and the risks involved in those alternatives. Without this
information, the patient is not in a position to make an educated choice
between going ahead with the proposed treatment and foregoing it.

[70]       
If a health care professional errs negligently in the way she informs
the patient, even if the subsequent procedure is not performed negligently, she
may be held liable in tort provided the procedure was the cause of the loss:
Linden & Feldthusen, Canadian Tort Law, 8^th ed. at 182.

[71]       
In Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, 129 D.L.R.
(4^th) 609, La Forest J. observed that requiring a physician to
properly inform the patient of relevant factors pertaining to the intended
procedure recognizes the inequality of information that characterizes the doctor-patient
relationship:

24        … As Robinson J. observed in Canterbury v.
Spence, 464 F.2d 772 (D.C. Cir. 1972), at p. 780:

True consent to what happens to one’s self is the informed
exercise of a choice, and that entails an opportunity to evaluate knowledgeably
the options available and the risks attendant upon each. The average patient
has little or no understanding of the medical arts, and ordinarily has only his
physician to whom he can look for enlightenment with which to reach an
intelligent decision. From these almost axiomatic considerations springs the
need, and in turn the requirement, of a reasonable divulgence by physician to
patient to make such a decision possible.

[72]       
Regardless of how beneficial a treatment may appear to a health care
professional, ultimately it is the patient’s choice whether he or she wants to
accept it. This right is potentially meaningless unless the patient is given
sufficient information to make an informed choice. Accordingly, the test for
disclosure of risk is based on what the patient would reasonably want to know
rather than what the medical profession considers appropriate. In Reibl v.
Hughes, [1980] 2 S.C.R. 880, 114 D.L.R. (3d) 1, Chief Justice Laskin
explained this at pp. 894-95:

To allow expert medical evidence
to determine what risks are material and, hence, should be disclosed and,
correlatively, what risks are not material is to hand over to the medical
profession the entire question of the scope of the duty of disclosure,
including the question whether there has been a breach of that duty. Expert
medical evidence is, of course, relevant to findings as to the risks that
reside in or are a result of recommended surgery or other treatment. It will
also have a bearing on their materiality but this is not a question that is to
be concluded on the basis of expert medical evidence alone. The issue under
consideration is a different issue from that involved where the question is
whether the doctor carried out his professional activities by applicable
professional standards. What is under consideration here is the patient’s right
to know what risks are involved in undergoing or foregoing certain surgery or
other treatment.

[73]       
The duty to disclose takes into account the degree of probability of the
risk and its seriousness. Thus, an unusual or improbable risk should be
disclosed if its effects are serious. Conversely, a risk of minor harm should
be disclosed if it is inherent or a probable result of the process: Rawlings
v. Lindsay (1982), 21 C.C.L.T. 301 (B.C.S.C.).

[74]       
In Frerotte v. Irwin (1986), 51 Sask. R.108 at 111 (Q.B.),
MacLeod J. described seven areas which ought to be the subject of a discussion
between physician and patient:

[30]      Generally speaking, a patient is entitled to be
informed of the following:

1.         The purpose of the treatment.

2.         The benefits of the treatment.

3.         The known consequences.

4.         The possible risks.

5.         The form of treatment.

6.         Alternatives to this treatment
if they exist.

7.         Possible consequences of the
refusal to accept the recommended treatment.

[31]      These requirements must
be viewed with a level eye, under all the circumstances. Medical people are
busy, some things are obvious and need not be mentioned, and some discussions
have the risk of doing more harm than good…

[75]       
As McLeod J. noted, health care professionals are busy people.
Accordingly, “the courts do not require doctors to explain to their patients
all the details of every procedure and all the things that can possibly go
wrong. If that were the case, our doctors would be discussing medicine all day
rather than practicing it”: Linden & Feldthusen, Canadian Tort Law,
8^th ed. (Markham: LexisNexis, 2006) at 182.

[76]       
However, the duty to disclose includes an obligation to ensure the
patient’s comprehension of the information communicated. In Sadlowski v.
Yeung, 2008 BCSC 456 at paras. 103-5, 57 C.C.L.T. (3d) 305, Mr. Justice
Slade reviewed the authorities on this point, which establish that the burden
is placed on the doctor to show that she took reasonable (not exhaustive) steps
to ascertain whether the patient understood the message being conveyed.

[77]       
But a doctor’s breach of the duty to obtain informed consent is not in
and of itself sufficient to ground liability. It must also be established that
the plaintiff would not have proceeded with the procedure had she been informed
of the risk. In Reibl, Chief Justice Laskin made the common sense
observation that a patient who is suing would hardly admit that she would have
agreed to have the surgery knowing the accompanying risks. Accordingly, a
modified objective test must be utilized when addressing this issue.

[78]       
In Diack v. Bardsley (1983), 46 B.C.L.R. 240 (S.C.), aff’d
(1984), 31 C.C.L.T. 308 (B.C.C.A.), Chief Justice McEachern said the task of
the trial judge is to determine whether a fully informed patient would have
agreed to the proposed treatment in a “hypothetical dialogue” between the
plaintiff and the defendant:  would a reasonable person in the plaintiff’s
particular circumstances have proceeded after being informed of all the
attendant risks?

[79]       
It is clear the subjective circumstances and characteristics of the
individual plaintiff must be considered when addressing the issue of causation.
In Arndt v. Smith, [1997] 2 S.C.R. 539, Cory J. stated:

6     …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.

…

9     …Which aspects of the
plaintiff’s personal circumstances should be attributed to the reasonable
person? There is no doubt that objectively ascertainable circumstances, such as
a plaintiff’s age, income, marital status, and other factors, should be taken
into consideration. However, Laskin C.J. didn’t stop there. He went on and
stated that "special considerations" affecting the particular patient
should be considered, as should any "specific questions" asked of the
physician by the patient. In my view this means that the "reasonable
person" who sets the standard for the objective test must be taken to
possess the patient’s reasonable beliefs, fears, desires and expectations…

[80]       
A plaintiff’s aversion towards a certain form of treatment is thus a
relevant consideration. In Finch v. Carpenter, [1993] B.C.J. No. 1918
(S.C.), the plaintiff’s fear of dentists led MacDonald J. to consider the issue
of causation objectively, “but from the point of view of a patient with greater
than normal apprehension of dental procedures.”

[81]       
When assessing the causation issue, the court may take into
consideration characteristics and circumstances of the patient that are not
known to the health care professional, as “causation turns on an assessment of
how a reasonable patient in the circumstances of the [plaintiff] would have
reacted and not on the doctor’s knowledge of those circumstances”: Lue v.
St. Michael’s Hospital (1999), 122 O.A.C. 46 at para. 4.

[82]       
In sum, when ascertaining whether informed consent to treatment has been
given, the Court must consider a two part test:

1.         Has there been a breach of the
duty to disclose and inform the patient?

2.         Would a reasonable person in
the patient’s position have consented to treatment had he or she been apprised
of the risks and all other information which ought to have been disclosed?

[83]       
If these two questions are answered in the affirmative, the plaintiff
still bears the onus of establishing that the impugned procedure actually
caused the damages alleged.

c)         Alternative Procedures

[84]       
While the language used in Reibl and Hopp is couched in
terms of disclosure of risks, the law is clear that the duty of
disclosure is not confined to risks, but extends to other material information
which a reasonable patient would want to have. This includes an obligation to
disclose sufficient information to enable the patient to place all reasonable
treatment options in a proper perspective and to assess their comparative risks
and benefits. The duty to disclose available alternatives is especially
important where these alternatives are more conservative and involve fewer
risks than the treatment which is being proposed: Moss v. Zaw, [2009]
O.J. No. 1317 at para. 140 (S.C.J.).

[85]       
Accordingly, a health care professional must disclose the various
alternative treatments that are available to a patient, even if he or she does
not favour them. In Van Dyke v. Grey Bruce Regional Health Centre
(2005), 255 D.L.R. (4^th) 397 (Ont. C.A.), leave to appeal ref’d
[2005] S.C.C.A. No. 335, Doherty J.A. stated the duty in the following terms:

67     …The extent to which a
doctor must disclose and discuss alternative treatments will depend on a myriad
of factual circumstances. The proper approach to the scope of the disclosure
obligations can, however, be stated in a generalized way. The ultimate decision
whether to proceed with a particular treatment rests with the patient and not
the doctor. The doctor must equip the patient with the information necessary to
make an informed choice. Where there is more than one medically reasonable treatment
and the risk/benefit analysis engaged by the alternatives involves different
considerations, a reasonable person would want to know about the alternatives
and would want the assistance of the doctor’s risk/benefit analysis of the
various possible treatments before deciding whether to proceed with a specific
treatment. Put differently, a reasonable person could not make an informed
decision to proceed with treatment "A" if that patient was unaware of
the risks and benefits associated with treatment "B", a medically
appropriate alternative treatment.

[86]       
Where a health care professional has been found to be in breach of the
duty to disclose or discuss the existence of alternative treatments, a slightly
different approach is taken to the issue of causation. As noted in Picard &
Robertson, Legal Liability of Doctors and Hospitals in Canada, 4^th
ed., (Toronto: Thomson-Carswell, 2007) at 192:

Causation in this type of case
requires the plaintiff to establish that a reasonable patient in similar
circumstances would have chosen the alternative treatment if properly informed.
However, there is an additional component to causation in these cases: would
the damage have been avoided if the alternative had been chosen? In most cases,
this will be relatively easy to prove, particularly if the risk that
materialized is not one associated with the alternative treatment. In these
cases, it will be clear that but for the treatment the injury would not have
occurred.

[87]       
This approach to causation where alternative treatments are involved was
confirmed in Zaiffdeen v. Chua, 2005 ABCA 290 at para. 35, 380 A.R. 200,
where the Court held that plaintiff must establish that had she undergone the
alternative treatment her condition would be better than it is at present, and
that the damages would have been averted.

d)         Relevance of Invariable
Practice

[88]       
Evidence of a health care professional’s invariable practice is
admissible and important when assessing whether she disclosed certain
information or risks to the plaintiff. If her practice is to always discuss
certain matters with every patient, this evidence is admissible (although not
determinative) in deciding whether she did so with the plaintiff. In Belknap
v. Meakes (1989), 64 D.L.R. (4^th) 452 at 465-66 (B.C.C.A.),
Seaton J.A. stated:

If a person can say of something
he regularly does in his professional life that he invariably does it in a
certain way, that surely is evidence and possibly convincing evidence that he
did it in that way on the day in question.

[89]       
However, the Court may make a finding that a physician has failed to
disclose a risk or fully inform the plaintiff despite his or her evidence of
invariable practice: Keane v. Adams, 2002 ABQB 63, 309 A.R. 237.
Evidence of invariable practice must be weighed against all of the other
evidence before the Court. In Taylor v. Morrison, [2006] O.J. No. 2978
(S.C.J.), Spiegel J. stated:

55     Like all circumstantial
evidence, the value of evidence of practice lies in the inferences that can
reasonably be drawn from it. The inferences that can reasonably be drawn depend
on the regularity of the practice and all of the other evidence in the case,
particularly other direct or circumstantial evidence that impacts on whether
the practice was followed on the instance in question…

[90]       
In Loffler v. Cosman, 2010 ABQB 177 at paras. 163-64, Mahoney J.
held that the existence of a chart note is not a prerequisite for a finding of
invariable practice and a poor chart will not deprive a medical practitioner of
the ability to rely on his or her standard practice. However, the absence of a
notation in a chiropractor’s chart may undermine the weight of the inference
which can be drawn from his or her evidence of invariable practice.

e)         Sufficiency of
Disclosure

[91]       
Simply disclosing the existence of a particular risk in generic terms
may not discharge a physician’s duty to disclose in all cases. The duty to
disclose requires a health care professional to describe the consequences of
the risk if that risk materializes, that is, the nature and severity of the
injury that might ensue.

[92]       
For example, in Huisman v. MacDonald, [2005] O.J. No. 2332
(S.C.J.), aff’d 2007 ONCA 391, leave to appeal ref’d [2007] S.C.C.A. No. 428,
as a result of hip surgery, the plaintiff suffered severe sciatic nerve injury
that caused paralysis of her left leg, and ultimately required a below-knee
amputation. The defendant surgeon had informed the plaintiff that there was a
risk of nerve damage involved in the procedure. However, he was held liable for
failing to explain the consequences of the nerve damage; namely, that it could
be permanent and result in irreversible paralysis.

[93]       
In Matuzich v. Lieberman, [2002] O.J. No. 2811 (S.C.J.), the sole
issue involved informed consent. Ferrier J. found that an explanation of the
risk involved in surgery requires a physician to explain the consequences of an
injury should it occur. Ferrier J. found that even though the defendants had
described the nature of the risk, they were negligent in their failure to
emphasise the extent of the consequences (which required further major surgery
and scarring to correct) and by minimizing the risks when discussing them.

[94]       
Accordingly, a physician may be negligent where he or she describes a
risk as “small” (even where that is correct as a matter of statistical
probability) where the consequences of such a risk are very serious. In such
circumstances, it is misleading and negligent to characterize a risk as
“small”.

[95]       
This was the conclusion reached by Barrow J. in Brock v. Anderson,
2003 BCSC 1359, 20 C.C.L.T. (3d) 70, where the physician told the plaintiff who
was to have her gall bladder removed that the risk of damage to internal organs
was “small”. Serious damage to two major blood vessels did in fact occur,
resulting in a life threatening situation. Mr. Justice Barrow stated:

31     I find that the risk of
damage to the major vessels underling the umbilicus is a material risk,
particularly when the Veress needle method of laparoscopic insertion is used. I
find that to describe the risk as "small", as was done here, may
accurately describe the likelihood of its occurrence, but does not adequately
convey the magnitude of the consequences of its occurrence. This is
particularly so when the description is used in contradistinction to the
description of the potentially fatal consequences that may flow from the
administration of a general anaesthetic.

[96]       
Similarly, in Boschman v. Azad, 2002 BCSC 887, 2 B.C.L.R. (4^th)
342, the plaintiff was advised prior to the surgery at issue that there was a
risk of “phrenic nerve injury”. However, the surgeon did not advise her of the
consequences of such an injury, which resulted in a form of paralysis which
impacted the plaintiff’s respiratory ability. In the circumstances, Melvin J.
held that notwithstanding the fact he had mentioned the risk, by omitting any
discussion of the consequences of that risk should it materialize, the
defendant was in breach of the duty to disclose:

29     …having accepted the
defendant’s evidence that he disclosed the risk of harm to the phrenic nerve
without the consequences thereof, the issue is not now whether the doctor had a
duty to disclose, but once he embarked upon a disclosure, the activity of
disclosure should be meaningful. In other words, once he recognized or accepted
or embarked upon a disclosure, it must be complete and meaningful. In this
respect, in my view, the defendant failed. Consequently, little is to be gained
by an analysis of the authorities to determine on the basis of the evidence in
the case at bar whether the duty to disclose existed simpliciter. I am
satisfied that the defendant did disclose. The issue, as Madam Justice Allan
stated in Bryan v. Hicks, [1993] B.C.J. No. 662 (March 25, 1993),
Vancouver Registry No. C906641 (B.C.S.C.); aff’d (1995), 10 B.C.L.R. (3d) 239;
[1995] 10 W.W.R. 145 (B.C.C.A.), is whether or not the defendant gave the
plaintiff sufficient information to make an informed decision. In my opinion,
to mention a risk of harm to a nerve without at the same time advising as to
the potential consequences to the patient of such harm, is not generally
sufficient.

f)          Circumstances of this
Case

[97]       
When Ms. Kern attended her first appointment with Dr. Thomas
she was given forms to complete, one of which was entitled “Informed Consent to
Chiropractic Adjustment & Care”. The form provides as follows:

I hereby request and consent to the performance of
chiropractic adjustments and other chiropractic procedures, including various
modes of physical therapy and, if necessary, diagnostic x-rays, on me by the
doctor of chiropractic listed below.

I have had the opportunity to discuss with the doctor of
chiropractic named below and/or other office or clinic personnel, the nature
and purpose of chiropractic adjustments and other procedures. I understand that
results are not guaranteed.

I further understand and am informed that, as in all health
care, in the practise of chiropractic, there are some very slight risks to
treatment, including, but not limited to, muscle strains and sprains, disc
injuries and strokes. I do not expect the doctor of chiropractic to be able to
anticipate and explain all risks and complications and I wish to rely on the
doctor of chiropractic to exercise judgment during the course of the procedure
which the doctor feels at the time, based upon the facts then known, is in my
best interest.

I have read the above consent. I
have also had an opportunity to ask questions about its content, and by signing
below I agree to the above named procedures. I intend this consent form to
cover the entire course of treatment for my present condition and for any
future condition(s) for which I seek treatment.

[98]       
Counsel for the plaintiff argues that the consent form the plaintiff
signed mentions the risks but not in a neutral way. Rather, they are mentioned
in a way that minimizes the effect of the consent. The words of the form fail
to ensure that the consent obtained is complete and informed. Counsel points
out that Ms. Kern has a high school education, no medical background and
no experience with chiropractic treatment.

[99]       
Bev Asher was the receptionist in the defendant’s office at the time. She
testified that she would have instructed Ms. Kern to read the form and to
sign it if she did not have any questions. If she had questions she was to
refrain from signing it and the questions would be dealt with by
Dr. Thomas.

[100]     Ms. Kern’s
signature appears on the form. The signature was witnessed by Ms. Asher. Ms.
Asher was not cross-examined with respect to this evidence.

[101]     Ms. Kern
did not deny signing the consent form. She did not recall the instructions from
Ms. Asher. She did not recall reading the form.

[102]     Ms. Kern
testified in examination-in-chief that she had no recollection of
Dr. Thomas warning her of risks associated with chiropractic adjustments.

[103]     Dr. Thomas’
evidence is that her standard practice is to have a discussion of the risks and
benefits of chiropractic care with a new patient and the alternatives to
chiropractic care when she has her “Report on Findings” session. This session
was on October 6. Dr. Thomas testified she would have given Ms. Kern
her findings from the examination, the results of the x-rays, the differential
diagnosis, the proposed treatment, possible alternatives to treatment, and what
to expect from treatment; and the risks.

[104]     Dr. Thomas
was speaking of her usual practice. She was able to say that this is what she
did because it is invariably her practice. She testified that she does not use
the same wording every time but the content is the same. It is her standard
practice to get out the consent form and discuss the risk of stroke and disc
injury and to provide the patient with an opportunity to ask questions.

[105]     I accept
the evidence of Dr. Thomas. She appeared diligent in her treatment of the
plaintiff. She is aware of the need for informed consent. As a recent graduate,
it is inherently unlikely that she would entirely neglect this aspect of informed
consent – asking the patient if she has any questions.

[106]     Mr. Kern
does not recall such a conversation. She denied that the conversation took
place in chief but accepted in cross-examination her statement on her
examination for discovery that she did not remember whether Dr. Thomas did this
or not.

[107]     Dr.
Thomas’ recollection is more consistent with all of the surrounding
circumstances and more likely. See Faryna v. Chorny (1951), 4 W.W.R.
(N.S.) 171, 2 D.L.R. 354 (B.C.C.A.).

g)         Written Consent Forms

[108]     While a
written consent to treatment may not be dispositive of the issue of informed
consent, in appropriate circumstances it is a highly relevant piece of evidence
favouring the treating health care professional: Consent to Treatment: A
Practical Guide, 4th ed., looseleaf (New York: Walters Kluwer, 2010) at
12-4.6.

[109]    
In Olsen v. Jones, 2009 ABQB 371, 11 Alta. L.R. (5^th)
203, the facts were similar to those in the present case: The defendant’s
receptionist instructed the plaintiff that if he had no questions, he should
sign a written consent form to chiropractic treatment. If he did have
questions, he should not sign the form and should discuss those questions with
Dr. Jones when he met with him. In those circumstances, the Court held that
obtaining the patient’s signature on the consent form by the office staff was
sufficient to discharge the responsibility of obtaining informed consent.
However, in reaching that conclusion, Crighton J. placed significant reliance
on the fact that Dr. Jones had made a handwritten notation on the consent form,
proving he had actually discussed its contents with the plaintiff:

125     Dr. Campbell Jones, on
the other hand, testified his name on the Informed Consent form in his
handwriting indicated they did discuss the form. He could not recall the
discussion specifically, but said Mr. Olsen either had questions and he
answered them, or he noted Mr. Olsen already had signed the form, in which case
he would have confirmed with Mr. Olsen he had no questions about it. The latter
seems more likely in this case.

[110]    
Olsen appears somewhat inconsistent with the authorities reviewed
below, which provide that a consent form will only protect a chiropractor to
the extent that it fully and fairly describes all pertinent and material
information. A written consent form which is superficial or incomplete does not
bar a plaintiff’s claim based on non-disclosure of risks or other information.
In Tremblay v. McLauchlan, 2001 BCCA 444, 91 B.C.L.R. (3d) 264, Saunders
J.A. stated:

28     Dr. McLauchlan has
referred to the consent form as precluding a complaint of non-disclosure. Given
the conclusions on material non-disclosure, it cannot be said, in my view, that
the consent form precludes Mr. Tremblay’s claim. A consent form is only as
good as the degree of material disclosure. [emphasis added]

[111]    
In Rozovsky, The Canadian Law of Consent to Treatment, 3rd ed.
(Markham: LexisNexis, 2003) at 143, the point is made that:

…consent is a ‘process’ and not
a form. The fact that a person has signed a consent form does not necessarily
mean that consent has been given, that it was informed, that the consent was
valid, or that the procedure performed was the procedure for which consent was
obtained. In considering whether there has been a valid consent, a court is required
to examine all relevant circumstances, not just the written form.

[112]     A medical
professional cannot delegate the entirety of his or her duty to obtain informed
consent to a standard form filled in and witnessed by office staff. As Picard
& Robertson note at pp. 50-51, “it is also important to bear in mind that a
piece of paper is not a substitute for the rapport of doctor and patient which
should precede the obtaining of consent. Consent should be part of a vital
process of communication between doctor and patient.”

[113]    
This is in accord with this Court’s statement of the law in Coughlin
v. Kuntz (1987), 17 B.C.L.R. (2d) 365 (S.C.), aff’d (1990), 42 B.C.L.R.
(2d) 108 (C.A.), where the issue of informed consent forms was squarely
addressed. In Coughlin the consent forms in issue did not explain the
risks associated with the proposed surgery. Cohen J. held that “[t]he existence
of the signed consent forms does not protect the defendant from liability
unless the patient has been informed to the satisfaction of the court. In my
opinion the forms did not satisfy the defendant’s duty of care. These forms
only beg the question of whether there was informed consent.” Mr. Justice Cohen
stated at pg. 394:

In my opinion, the consent forms
signed by the plaintiff cannot in any way protect the defendant as I find the
defendant failed in his duty to explain and fully disclose all relevant
information to the plaintiff relating to his proposed neck surgery. The time to
make such an explanation and provide the full disclosure, particularly in a
situation such as here of elective surgery, was in the defendant’s office in a
setting where there was adequate time for making the explanation and settling
the plaintiff regarding any questions he may have had about the proposed surgery.
The signing of the consent forms by the plaintiff in the hospital on the eve
of surgery was a mere formality incapable of satisfying the defendant’s duty of
disclosure. For consent forms to have any legal effect there must be an
adequate knowledge base on the part of the patient before the exempting
language of the form will provide its intended protection for the surgeon or
the hospital from adverse effects of the operation. [emphasis added]

[114]     The Court
of Appeal expressly endorsed this conclusion (at pg. 116).

[115]     In
addition to Olsen, two very recent Chiropractor’s negligence cases are
of assistance on this point.

[116]     In Dickson
v. Pinder, 2010 ABQB 269, the Court addressed the issue of informed consent
to chiropractic treatment at length. In that case, the plaintiff read material,
and was informed by the defendant that a stroke might occur as a consequence of
therapy. However, she did not understand the meaning of the term
"stroke" and she did not comprehend that this was a very serious
result. The Court held that by not explaining the characteristics and
consequences of a stroke, the defendant failed to disclose sufficient
information to allow her to make an informed decision. He further breached his
duty of disclosure in not discussing treatment alternatives to “spinal
manipulative therapy”. However, the claim was ultimately dismissed on the
causation branch of the test.

[117]    
In relation to the standard written consent form utilized by the
defendant, the Court noted that it was a useful starting point, but held that
reliance on such a form without any further discussion is entirely
insufficient:

83     The Informed Consent Form is useful as a starting
point, as it informs the patient of certain risks inherent in chiropractic
treatment…

84     If the words "prior to" in the Glenerin
Guidelines modify the word "examination" and the word
"treatment," then that is the correct approach. If they modify the
words "examination and treatment" and the chiropractor obtains a
signature on a form while the patient is in the waiting room, with no other
discussion, then that is an incorrect approach and the chiropractor by so doing
has not fulfilled their duty. That approach makes a mockery of the
jurisprudence flowing from the doctrine of informed consent since Hopp.

…

86     When a medical practitioner requires a patient to
review and sign an informed consent form before the medical practitioner
undertakes any diagnosis and treatment of the patient, a court will consider
that factor when it attempts to determine whether the medical practitioner has
complied with their duty of disclosure, see e.g. Olsen at para. 128.
Medical practitioners must be cautious when they only rely on a signed informed
consent form. The medical practitioner must take reasonable steps to ensure
that the patient understands and appreciates the nature of the procedure to
which the patient is consenting and the form that the patient has signed…

87     In summary, the Informed
Consent Form is only useful and relevant in this case if Ms. Dickson knew the meaning
and implications of the statements contained in that form. If Ms. Dickson did
not know anything about a stroke and its potential consequences, then her
signature on the Informed Consent Form in relation to stroke is meaningless and
her consent is not informed.

[118]    
In relation to the discussion which must occur in conjunction with the
written consent form, the Court held that a chiropractor must engage in a
meaningful discussion, explaining the consequences of the risks set out on the
form even where the patient fails to ask specific questions:

94     How is the chiropractor to discharge their duty of
disclosure to the patient? Certainly, the chiropractor must provide the patient
with reasonable responses to questions that the patient poses. This assumes that
the patient poses any such questions. The Byciuk court explained why
patients might not pose questions, when it said at para 34:

He may be intimidated by or deferential to the physician’s
superior knowledge. He may not wish to demonstrate his failure to understand.
He may have long since forgotten what he intended to ask. If he understood none
of the message, he may not know what to ask. See Picard and Robertson supra at
139.

A number of problems exist with respect to patients asking
questions. Unless secure in their relationship with the doctor, many patients
are unlikely to ask questions. Or they may not know enough to enable them to
frame specific or even general questions. It is perhaps not surprising that so
few of the reported cases indicate that questions are asked by the patient.

95 If a patient does not
ask questions, the chiropractor cannot assume that the patient understands the
various risks. The chiropractor must discuss with the patient each
material, unusual or special risk, be satisfied that the patient appeared to
understand those risks and note that fact on the patient’s chart, Byciuk
at para. 38, Finch v. Carpenter, [1993] B.C.J. No. 1918 (QL), 42
A.C.W.S. (3d) 1095 at paras. 20, 22 (S.C.).

[119]     On the
issue of alternative treatments, the Court held (at paras. 103-107) that in
light of the fact that the experts agreed that spinal manipulative therapy was
not the only possible treatment for the plaintiff’s condition, and that her
history indicated that the pain she reported may have resolved over time
without any steps beyond rest, the defendant breached his duty when he failed
to describe any other reasonable alternatives.

[120]    
In Gallant v. Brake-Patten, 2010 NLTD 1, 292 Nfld. & P.E.I.R.
279, the plaintiff had been a patient of the defendant chiropractor for over 7
years at the time of his injury. No written consent was executed, but the
plaintiff had been warned at the first visit of a “very slight risk of stroke”.
However, there was no explanation of the type of stroke that might result, its possible
location, its cause or its effect. In relation to this disclosure of the risks
involved in cervical manipulations, Harrington J. reached the following
conclusion:

41     This Court has concluded
that reference by Dr. Brake-Patten to the slight risk of stroke without
reference to possible damage to the vertebral artery of the neck supplying
blood to the head and neck and to the possibility of hearing loss, loss of
balance, paralysis or even death rendered completely inadequate the
disclosure to a chiropractic patient like Mr. Gallant seeking relief from neck
pain when other forms of alternative treatment may have adequately and
effectively assisted him. [Emphasis Added.]

[121]     The Court
also found that the plaintiff would not have proceeded with the treatment had
he been properly informed of the risks, as he would have elected to obtain
alternative treatments. The evidence in that case disclosed that one form of
treatment is cervical manipulation, which carries risks. But cervical
manipulations or adjustments are just one form of treatment, and there are
other forms of treatments such as mobilization, soft tissue therapy and massage
that may not be as effective as the cervical manipulation in providing
immediate pain relief but may, nevertheless, be a safer alternative for a
patient to consider.

Conclusion on Informed Consent

[122]     In my
view, the written consent form is inadequate.  There is no description of
alternative treatments.  It minimizes the risks involved: “Some very slight
risks to treatment, including, but not limited to, muscle strains and sprains,
disc injuries and strokes” (emphasis added).  There is no explanation of the
consequences if the risk of disc injury materialized.

[123]     Dr. Thomas
is certain she discussed the risks and the alternatives to chiropractic
treatment.  I accept her evidence.  She testified that her training taught her
to disclose the risk of stroke, muscle strain, sprains, disc injury and rib
fracture but she does not recall her exact words.  There is no evidence,
however, that there was any mention of a risk of spinal cord damage.

[124]     The
evidence falls short of establishing that Ms. Kern was fully informed.  In
light of the inadequacy of the consent form, merely ensuring the patient
understood what is said on the form is similarly inadequate.  Here, there has
been a failure to adequately describe the possible negative consequences of the
treatment.

[125]     However,
that does not end the matter.  The plaintiff must establish that if she had
been fully informed of all the risks she would not have proceeded.

[126]     I have
considered the “hypothetical dialogue” as McEachern C.J.S.C. referred to it in Diack. 
Here, several factors cumulatively lead me to conclude that Ms. Kern would have
elected to proceed.  First, she told Dr. Forest that she had permitted her
husband, who has no training of any kind, to crack her back prior to attending
at the chiropractor.  Second, she testified in her examination for discovery
that she was comfortable with Dr. Thomas’ manner and was content to follow her
recommendations.

[127]     Third, her
general practitioner had referred her for chiropractic treatment.  She decided
to follow Dr. Yokoyama’s advice notwithstanding that she had heard “scarey
stories” about  chiropractic treatment.  Fourth, there was nothing unusual
about the adjustments being performed.  Dr. Jung agreed that such adjustments
are performed routinely by chiropractors in general practice.  Finally, it is
significant to me that although her symptoms persisted, she returned to the
chiropractor’s office for several treatments, following the recommendations of
the chiropractor.

[128]     Considering
all the evidence, and these factors in particular, I conclude Ms. Kern
would have proceeded with treatment had she been fully informed of the risks
and alternatives.

2.         Causation:
Did the Chiropractic Treatments Cause the Plaintiff’s Injuries

[129]     In this
section I consider causation, not whether the chiropractic treatments were
negligent or below the standard of care.

[130]     The
plaintiff bears the burden of proving that she would not have suffered the
injuries complained of “but for” the actions of the defendant: Athey v.
Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235; Blackwater v. Plint,
2005 SCC 58, [2005] 3 S.C.R. 3.

[131]    
In Resurfice Corp. v. Hankey, 2007 SCC 7, [2007] 1 S.C.R. 333, Chief
Justice McLachlin set out the basic test for causation:

20     Much judicial and academic ink has
been spilled over the proper test for causation in cases of negligence. It is
neither necessary nor helpful to catalogue the various debates. It suffices at
this juncture to simply assert the general principles that emerge from the
cases.

21     First, the basic test for
determining causation remains the "but for" test. This applies to
multi-cause injuries. The plaintiff bears the burden of showing that "but
for" the negligent act or omission of each defendant, the injury would not
have occurred. Having done this, contributory negligence may be apportioned, as
permitted by statute.

22     This fundamental rule has never
been displaced and remains the primary test for causation in negligence
actions. As stated in Athey v. Leonati, at para. 14, per Major
J., "[t]he general, but not conclusive, test for causation is the ‘but
for’ test, which requires the plaintiff to show that the injury would not have
occurred but for the negligence of the defendant". Similarly, as I noted
in Blackwater v. Plint, at para. 78, "[t]he rules of causation
consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s
damages would have been incurred on a balance of probabilities."

23     The
"but for" test recognizes that compensation for negligent conduct
should only be made "where a substantial connection between the injury and
the defendant’s conduct" is present. It ensures that a defendant will not
be held liable for the plaintiff’s injuries where they "may very well be
due to factors unconnected to the defendant and not the fault of anyone": Snell
v. Farrell, at p. 327, per Sopinka J.

[132]    
The Chief Justice went on in Resurfice to outline circumstances
where the “material contribution” test is applied, rather than the “but for”
test:

24     However, in special circumstances,
the law has recognized exceptions to the basic "but for" test, and
applied a "material contribution" test. Broadly speaking, the cases
in which the "material contribution" test is properly applied involve
two requirements.

25     First,
it must be impossible for the plaintiff to prove that the defendant’s
negligence caused the plaintiff’s injury using the "but for" test.
The impossibility must be due to factors that are outside of the plaintiff’s
control; for example, current limits of scientific knowledge. Second, it must
be clear that the defendant breached a duty of care owed to the plaintiff,
thereby exposing the plaintiff to an unreasonable risk of injury, and the
plaintiff must have suffered that form of injury. In other words, the
plaintiff’s injury must fall within the ambit of the risk created by the
defendant’s breach. In those exceptional cases where these two requirements are
satisfied, liability may be imposed, even though the "but for" test
is not satisfied, because it would offend basic notions of fairness and justice
to deny liability by applying a "but for" approach.

[133]     The material
contribution test has no application here. There is no suggestion it is
impossible for the plaintiff to prove her case using the but for test.

[134]     There is
an obvious temporal connection between the October 17 treatment by Dr. Somani
and the onset of numbness and other symptoms. But as counsel for the defendant
points out, one must be careful not to simply apply the logical fallacy post
hoc ergo propter hoc.

[135]    
This fallacy was described by Ehrcke J. in White v. Stonestreet, 2006
BCSC 801, 151 A.C.W.S. (3d) 233:

[74]      The inference from a temporal sequence to a causal
connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name. It
is sometimes referred to as the fallacy of post hoc ergo propter hoc:
 “after this therefore because of this.”

[75]      In searching for
causes, a temporal connection is sometimes the only thing to go on. But if a
mere temporal connection is going to form the basis for a conclusion about the
cause of an event, then it is important to examine that temporal connection
carefully. Just how close are the events in time?  Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?

[136]     I have had
the benefit of several expert opinions.

[137]    
Dr. Bradley Stewart is a neurologist in Edmonton. He holds teaching
positions at the University of Alberta. He gave evidence on behalf of the
plaintiff. In his report, he expressed this opinion:

The manipulation carried out by
the chiropractor Somani more likely than not precipitated rupture of her C5/6
disc with resultant compression of her spinal cord. To suggest that the
chiropractor was simply an innocent bystander is illogical. The delay in
recognition of the patient’s neurologic syndrome by the chiropractor Forest
more likely than not contributed to the residual disability that Lisa Kern
possesses to this date.

[138]     Dr.
Stewart’s role is to assist the court as an expert in an unbiased manner. I do
not find his report helpful.

[139]    
Dr. Stewart is an outspoken critic of chiropractic care. He wrote the
foreward to a book authored by Paul Benedetti and Wayne MacPhail, “Spindoctors
– The Chiropractic Industry Under Examination”, (Toronto: Dundurn Group, 2002).
Dr. Stewart’s foreward includes these comments:

Much like the tobacco industry in
the 1960’s, the chiropractic community appears to feel that if they continue to
deny virtually all complications arising from their treatment, the public will
not listen to the warnings of medical doctors. Chiropractors state that they
have an enviable record in treating patients when compared to mainstream
medicine. As the vast majority of chiropractic complications occur in perfectly
healthy people, comparing medical complications with chiropractic complications
is a true “apples and oranges” scenario. Recent studies done by chiropractors
and medical doctors alike (published in mainstream medical journals) have indicated
that, at best, chiropractic has no affect upon patients, and, at worst, it
increases the likelihood of them becoming chronically disabled. … [I]t is
essential that treatments provided are backed by scientific evidence. To
continue to fund chiropractic therapy still desperately searching for
validation after 100 years is insulting to the public, the patients who attend
chiropractors, and the medical doctors who are expected to clean up the wholly
unjustifiable mistakes of the chiropractic community.

[140]     Dr.
Stewart did not resile from these views when he gave evidence. Moreover, Dr.
Stewart made no attempt to hide his bias in cross-examination. He was glib and
flippant.

[141]    
The following exchange between Dr. Stewart and counsel for the defendant
occurred in the course of cross-examination:

Q         The first paragraph of this foreword ends,
sir, with the sentences — two sentences:

She was, according to the chiropractic
community, the first patient in Canada to die after suffering a stroke from a
neck manipulation. This, of course, was pure fantasy.

You then
continue:

The rhetoric that the chiropractic
community espoused over the next while was disgusting at best, and a series of
well-constructed lies at worst.

Do you
stand by those words, Dr. Stewart?

A          That’s fairly accurate.

Q         Okay, would you
turn, please, to the next page of your foreword. The second paragraph of your
foreword you state:

Much like the tobacco industry in the
1960s, the chiropractic community appears to feel that if they continue to deny
virtually all complications arising from their treatment, the public will not
listen to the warnings of medical doctors.

Do you
stand by that statement?

A          I think that’s fair, yes. Yes.

Q         It’s fair to
describe the chiropractic profession in Canada at the present time as being
analogous to the tobacco industry in the 1960s?

A          Well, it was an
analogy that — that struck me as — as appropriate. You may not like it, but
it’s what came to mind.

Q         So in fairness,
Doctor, it might be a little overblown?  You might have gone a little overboard
there?

A          I’ll take that under consideration next
time I write a foreword to a book, I’ll give you a call.

[142]     Dr.
Stewart is entirely entitled to his opinion of chiropractic treatment. His
views may be sound. They may be correct. But they demonstrate a pre-disposition
to be critical of care by chiropractors.

[143]     The role
of an expert is to provide independent assistance to the court. The court is
entitled to expect objective, unbiased opinion. It is not the role of an expert
to be an advocate: Kirby Lowbed Services Ltd. v. Bank of Nova Scotia,
2003 BCSC 617; Tsilhqot’in Nation v. Canada (Attorney General), 2005
BCSC 131.

[144]     Dr.
Stewart crossed the line separating an expert witness from an advocate. His
bias is such that his opinions cannot be relied upon in these proceedings.

[145]     Winston
Gittens is a neurosurgeon practicing in New Westminster. He first examined Ms. Kern
on October 29, 2003, after she had been admitted to Royal Columbian Hospital by
Dr. Grosch. On November 3, Dr. Gittens performed surgery on the plaintiff: an
anterior cervical discectomy and interbody fusion.

[146]    
Dr. Gittens’ opinion is that the plaintiff had pre-existing spondylosis,
i.e., degenerative changes to discs at the C5-6, C6-7 level. He went on
in his opinion:

She clearly developed significant
neurological deterioration during the course of chiropractic treatment, from
the information which I have reviewed.

[147]     Dr.
Gittens felt there were two possible “scenarios”. The first is that she had pre-existing
cervical spondylosis, spontaneous (meaning not as a result of any trauma)
herniation of the C6-C7 disc resulting in the pain in the shoulder blade area
and possible parathesiae with subsequent worsening during chiropractic care,
possibly related to manipulation.

[148]     The second
scenario was that the original symptoms of neck pain were related to
degenerative change and musculoskeletal problems rather than disc herniation
and that the disc herniation came on as a result of chiropractic care.

[149]     He concluded
that the first scenario was more likely.

[150]    
Dr. Grosch is a neurologist. He first examined Ms. Kern on
October 29, 2003. He concluded in his report of February 26, 2008 as
follows:

The chiropractic manipulations,
especially the ones done on October 17, 2003 [were] a material contributing
factor to Ms. Kern’s symptoms including the ongoing ones.

He also said:

My neurological assessment of the
situation is that Ms. Kern probably did have a minor irritation of the left C6
nerve root in mid-September 2003 causing pain in the left neck, shoulder and
scapular area. Spontaneous disc herniation causing cord compression, in my
experience, is very rare unless subsequent trauma is involved. I would say
therefore that the cervical chiropractic manipulation carried out on October
17, 2003 led directly to the disc herniation that caused the subsequent cord
compression and disability Ms. Kern experienced at the time and continues to
experience to this day. It is often difficult to be definitive about a cause
and effect relationship within a medical context. However, in this instance I
believe it is more likely than not that the chiropractic manipulation of
October 17, 2003, caused the disc herniation producing subsequent spinal cord
injury. Without this intervention, I believe that the massive disc herniation
would very likely not have occurred and that the left cervical nerve root
irritation symptoms would likely have dissipated over time as they usually do.

[151]    
Counsel for the defendant asked Dr. Grosch in cross-examination whether
there was anything more than a “temporal relationship” between the treatment
and the injuries:

Q:        Okay, and yet, Dr., when you blame the chiropractic
adjustments in this case for the herniation, the temporal relationship is
really all you have to go on, isn’t it?

A:         Well, it is, yeah.
I mean, it’s hard to escape sort of saying one and one is two but, yes, it’s
possible it wasn’t due to the manipulation.

[152]    
Dr. Nittin Reebye is a physiatrist who treated the plaintiff. His
conclusion was:

…It is unlikely that she would
have experienced the symptoms that she did soon after the manipulation of her
neck in the absence of the manipulation.

Of course, Dr. Reebye, as a physiatrist, is not an
expert in neurology.

[153]    
Dr. Mark Erwin is a chiropractor who also holds a doctorate from the
Institute of Medical Science at the University of Toronto. He is an assistant
professor at the University of Toronto and Toronto Western Hospital in the
Department of Surgery, Division of Orthopaedic Surgery. He was asked his
opinion on this question:

In your opinion, what is the likelihood
that the C6/7 disc herniation suffered by Ms. Kern, and the neurological symptoms
experienced by her commencing the evening of October 17, 2003, were contributed
to by the cervical chiropractic adjustments performed during the time period of
October 6-17, 2003?

His answer included this:

In the event
that a patient may have a pre-disposing condition such as prior disc damage, it
is possible that manipulation of the cervical spine could aggravate the
patient’s condition. On the other hand, it is just as likely that such
treatment may have had little, if any, contribution as the disc herniation may
well have already been in progress and the treatments and Ms. Kern’s symptoms
were nothing more than temporally related.

I note that in Dr. Grosch’s letter to
Dr. Yokoyama of 29 October 2003, he notes with respect to the development of
Ms. Kern’s disc herniation “whether this occurred spontaneously or secondary to
a chiropractic manipulation is conjectural”. Dr. Grosch is entirely correct in
his statement. The development of a disc herniation often represents a
continuum of events that summate to result in degenerative change and/or
failure. The rate at which this occurs and the degree to which it occurs varies
from person to person. It is common that trivial, every day events may result
in disc herniation such as coughing, bending, sneezing, looking overhead,
cradling a telephone over the neck and shoulder and other similar situations
particularly when the disc is already in a degenerative state. It is impossible
to, with any certainty, ascribe the development of Ms. Kern’s disc herniation
to one specific event.

[154]     It is
possible that, as Dr. Erwin opines, the onset of symptoms within a very short
time of the manipulations was a coincidence. It is not likely.

[155]     I am
satisfied the plaintiff has proved on a balance of probabilities that her injuries
were caused by Dr. Somani’s chiropractic treatment on October 17, 2003.

3.         Was Dr. Somani’s Treatment Negligent and in Breach of
the Standard of Care?

[156]    
In Wallace v. Zradicka, 2006 BCSC 1166, 59 B.C.L.R. (4th) 330,
Mr. Justice Chamberlist described the standard of care for doctors of
chiropractic medicine:

[34]      The most comprehensive statement of a standard of
care of a health practitioner practising in Canada is to be found in the
Supreme Court of Canada decision in ter Neuzen v. Korn (1995), 11
B.C.L.R. (3^rd) 201 (S.C.C.), where Mr. Justice Sopinka, at p. 214,
stated:

It is well settled that physicians have a duty to conduct
their practice in accordance with the conduct of a prudent and diligent doctor
in the same circumstances. In the case of a specialist, such as a gynaecologist
and obstetrician, the doctor’s behaviour must be assessed in light of the
conduct of other ordinary specialists, who possess a reasonable level of
knowledge, competence and skill expected of professionals in Canada, in that
field. A specialist, such as the respondent, who holds himself out as
possessing a special degree of skill and knowledge, must exercise the degree of
skill of an average specialist in his field: see Wilson v. Swanson,
[1956] S.C.R. 804 at 817, Lapointe c. Hôpital Le Gardeur, [1992] 1
S.C.R. 351 at 361, and McCormick v. Marcotte (1971), [1972] S.C.R. 18.

[35]      It is important to note that the adjective
"average" is only used in connection with medical specialists, while
in respect of general practitioners the standard is that of a "prudent and
diligent" physician. In the case of chiropractors specifically, Allan J.
in Balcom v. MacDonald, [2000] B.C.J. No. 1943, 2000 BCSC 1426, stated
the test or standard with respect to chiropractors as follows:

91        The defendant questions the admissibility of
Dr. Anton’s evidence on the issue of the appropriate chiropractic standard
of care, which must be determined by chiropractic evidence: Penner v.
Theobold (1962), 40 W.W.R. 216 (Man. C.A.), Cawley v. Mercer, [1945]
3 W.W.R. 41 (B.C.S.C.). In Penner, the Court stated that the standard by which
a chiropractor is to be judged is that of what may reasonable be expected of
the ordinary, careful, competent chiropractor. In Cawley, it was held that only
another chiropractor could testify as to whether the defendant had exercised
the requisite degree of care and skill expected of a chiropractor.

[36]      Thus, the standard in
British Columbia, I accept to be that which may reasonably be expected of the
"ordinary, careful, competent chiropractor". I also accept the word
"average" used in the case law in connection with the standards of
specialists cannot mean "mathematical average" because utilizing a
mathematical average roughly half of all practitioners would fall below the
standard and be negligent per se. I therefore conclude that
"average" in the context used must be taken to have its other
meaning, namely ordinary or acceptable.

[157]     I am in
respectful agreement with this description of the standard of care. The standard
is that of the ordinary careful competent chiropractor.

[158]    
The plaintiff relied on the evidence of Dr. Stanley Jung, a chiropractor.
Dr. Jung is critical of Dr. Somani and Dr. Forest. He asserts that they
should have reviewed Ms. Kern’s file as a whole including x-rays before
seeing the patient. Dr. Jung said of Dr. Somani:

Dr. Somani agreed that she did not have any specific
recollection of actually going through Ms. Kern’s chart. However, she did
have a usual procedure for reviewing the patient’s chart by “look(ing) through
the initial intake form and examination forms as well as look(ing) at the chart
notes of daily treatment.

It is my opinion that even if a reasonably prudent
chiropractor had not reviewed the file in its entirety but just read the
initial intake form, examination forms and daily chart notes (which were
deficient in content); she would have taken into consideration the severe
degenerative status of Ms. Kern’s neck.

…

In light of the x-ray findings, the treatment rendered to
Ms. Kern’s neck, specifically, at C5/6 should have been performed in a
more gentler [sic] manner than other vertebral segments. Based on the severity
of the degeneration, some chiropractors may have even considered alternative
treatment to that segment.

As mentioned, Dr. Somani did not
review the x-rays. In my opinion, a reasonable chiropractor would use all the
tools and information available, including x-rays and then render a gentler
treatment.

[159]     Dr. Jung’s
report was also critical of several other aspects of the defendants’ treatment
of the plaintiff between October 3 and 17.

[160]     I have two
difficulties with Dr. Jung’s report. First, his experience as a
chiropractor in general practice is extremely limited. I am not at all
confident that it is sufficient to form a basis for conclusions regarding
practice standards. He practised in a general practice after becoming certified
in August 1998. He did not practice between 2001 and 2003, but returned as a
specialist in rehabilitation chiropractic in January 2003. He then stopped
practising for a year because of an accident and returned on a part-time basis,
one or two days a month as a chiropractic specialist. A specialist spends more
time with a patient than a general chiropractor.

[161]     Second,
Dr. Jung relies on the Clinical Guidelines for Chiropractic Practice in
Canada for determining the standard of care. He testified that the standard
of care and the clinical guidelines are one and the same, that is, where there
are clinical guidelines they effectively set out the standard of care for the
profession. Dr. Jung did not understand that the guidelines draw a
distinction between a guideline and the standard of care in the very glossary
to the publication. He also did not take note of the explicit warning in the
disclaimer that the guidelines are not standards of care. This is also the
error made by experts in Olsen v. Jones, 2009 ABQB 371, 11 Alta. L.R.
(5th) 203.

[162]    
The general disclaimer at the beginning of the publication includes the
following:

Clinical guidelines are designed
to assist clinicians by providing an analytical framework for the evaluation
and treatment of common clinical problems. These guidelines are not intended to
replace a clinician’s clinical judgment or to establish the only appropriate
approach for all patients. They are intended to be flexible. They are not
standards of care. Adherence to them is voluntary. The Association [the
Canadian Chiropractic Association] understands that alternative practices are
possible and may be preferable under certain clinical conditions. …

[163]     However,
the clinical guidelines may be relevant as evidence providing substance
and specific content to the general standard of the “ordinary careful competent
chiropractor”.

[164]    
In Koch v. Brydon, 2008 SKQB 464, the defendant Doctor performed
surgery in a manner inconsistent with the Clinical Practice Guidelines issued
by the Society of Obstetricians and Gynaecologists of Canada. Regarding the
relevance of the guidelines to the question of whether the defendant breached
the applicable standard of care, McLellan J. noted that evidence that a
physician acted in accordance with a recognized and customary standard of
medical practice will generally exonerate her from a complaint of negligence.
As a corollary, while not negligence per se, a doctor’s failure to
comply with the recommended standards of a professional association is a fact
to take into consideration which may strengthen other evidence of negligence:

21     In the text, Professional Liability in Canada,
looseleaf (Ontario: Carswell, 1994), the authors discuss this issue at p. 9-33:

… The failure by a physician to comply with standards
recommended or established by the College of Physicians and Surgeons or the
Canadian Medical Association will be strong evidence of negligence. On the
other hand, where a physician acts in conformity with the standard and
recognized practice followed by members of the profession, it will be strong
evidence that reasonable care and skill have been exercised. … [emphasis
added by McLellan J.]

23     Although the failure to
comply with the recommended standards of governing professional associations
may strengthen the evidence of negligence, it appears to be just one fact that
is taken into consideration. In Spillane, supra, Boland J.
assessed a number of different factors that combined to justify the finding of
negligence.

[165]    
In Downey v. St. Paul’s Hospital, 2007 BCSC 478, 71 B.C.L.R. (4^th)
213, the plaintiff sought damages against the hospital pursuant to the Occupiers
Liability Act after contracting tuberculosis during a hospital visit with a
friend who, at the time, unknowingly had the disease. The plaintiff argued that
the hospital’s failure to isolate his friend was a breach of the duty of care
they owed to him pursuant to the Act. The Hospital’s Infection Control
Manual contained a written policy to deal with suspected TB cases, which left
the decision as to whether to enforce restrictive isolation to the treating
physician. Goepel J. stated the following regarding the use which may be made
of policies and guidelines when determining the applicable standard of care:

88     While a policy may be an
important factor in determining the standard of care, it is not determinative,
nor is it to be treated as if it were statute imposing civil obligations: Roy
v. British Columbia (Attorney General) (2005), 38 B.C.L.R. (4th) 103
(C.A.). While policies and guidelines may assist a court in determining the
standard of care, the court must give considerable weight to the evidence of
experts who comment and interpret those policies and guidelines. That is
particularly so in a case of this kind which involves questions of medical
treatment that are beyond the ordinary experience and understanding of a judge
or jury. The resolution of this case carries with it the necessity of judging
matters that require diagnostic or clinical expertise.

[166]    
Similarly, in B.M. (Litigation Guardian of) v. R.M., 2009 BCSC
214, 64 C.C.L.T. (3d) 210, aff’d 2009 BCCA 413, Dillon J. stated:

74     The appropriate standard
of care should also examine external indicators of reasonable conduct,
including professional standards and internal policy… Compliance with policy
may be an important factor to consider in determining whether the standard of
care has been met… However, failure to follow policy does not automatically
compel the conclusion that the standard of care was breached…[Citations
omitted.]

[167]    
In Ediger (Guardian ad litem of) v. Johnston, 2009 BCSC 386, 65
C.C.L.T. (3d) 1, Holmes J. noted that considerable attention was paid in the
trial to guidelines concerning forceps deliveries published by the Society of
Obstetricians and Gynaecologists of Canada and the British Columbia
Reproductive Care Program. The parties and witnesses did not suggest the
guidelines were determinative of the standard of care. However, they recognized
the guidelines as bearing heavily on the standard of care that physicians are
expected to meet. Madam Justice Holmes accepted that the guidelines were one
piece of evidence which might inform the standard of care, though they were not
dispositive of the issue:

59     To breach a recommendation
of a professional guideline does not of itself constitute a failure to meet the
applicable standard of care. As Dr. Johnston submits, guidelines are practical
tools to assist practitioners in the delivery of services; they are not a
substitute for a determination, on all the evidence, of the applicable standard
of care.

[168]    
Dr. Brock Potter was called on behalf of the defendants. He has spent some
20 years in private general practice and has served as co-chair of the British
Columbia chiropractic examining board for a six-year period. This board sets
licensure examinations for chiropractors. He has provided these opinions:

In my opinion the chiropractic
treatment undertaken by Dr. Thomas of Ms. Kern from October 6 through
11, 2003 including chiropractic adjustments of the cervical spine had no contra
indications. Ms. Kern presented with symptoms (reported by the patient)
that were suggestive of a cervical radiculopathy including left should blade
pain, soreness in her left arm and forearm and parathesiae in her the fingers
of her left hand. Dr. Thomas performed an upper limb neurological
examination which was normal; therefore Ms. Kern had no objective signs
(measured by the doctor) of a radiculopathy.

[169]    
He went on to say that x-rays revealed hypolordosis, severe C5/6 disc
space decrease and severe C5/6 spondylosis which is often referred to as
degenerative changes or degenerative findings. He said that such findings are
common and that chiropractors commonly treat patients who have cervical spine
degeneration. Finally he was asked:

In your opinion having regard to
the standard care of the ordinary, careful, competent chiropractor practising
in British Columbia in 2003, was it acceptable for Dr. Somani to have
undertaken chiropractic adjustments of Ms. Kern on October 14 and 17,
2003, in particular without Dr. Somani having first examined the x-rays?

[170]     He said
that Dr. Thomas had reviewed the x-rays and written an x-ray report in the
clinical records and found no contra indication to treatment. He was therefore
of the opinion there was no reason for Dr. Somani to have reviewed the cervical
spine x-rays before treating Ms. Kern. He concluded that Dr. Somani’s
treatment of Ms. Kern on October 14 and 17, 2003 upheld the standard of
care of the ordinary, careful, competent chiropractor practising in British
Columbia at that time.

[171]     I agree
that Dr. Somani was not negligent.

4.         Adverse
Inference for Not Calling Dr. Forest

[172]    
The plaintiff argues that I should draw an adverse inference from the
fact that the defendant Margaret Forest did not testify at trial. Counsel
relies on Royal Trust Co. v. Diamant, [1953] 3 D.L.R. 102 at 110 (B.C.S.C.):

A very strong case of
circumstantial evidence has been made against the defendant. Evidence which
throws grave suspicion upon the defendant’s honesty has not been contradicted
or explained. I can only infer that the defendant is afraid to submit himself
to the searching light of cross-examination.

[173]    
I take the applicable principles to be these. In McTavish v.
MacGillivray (1997), 38 B.C.L.R. (3d) 306 at para. 17 (S.C.), Mr. Justice
Burnyeat cites with approval the following passage from Wigmore on Evidence,
3rd ed., Vol. II, p. 162:

…The failure to bring before
the Tribunal some circumstance, document, or witness, when either the party
himself or his opponent claims that the facts would thereby be elucidated,
serves to indicate, as the most natural inference, that the party fears to do
so, and this fear is some evidence that the circumstances or document or
witness, if brought, would have exposed facts unfavourable to the party.

[174]     Second, whether
an adverse inference should be drawn is a matter in the court’s discretion: Rimmer
(Guardian ad litem of) v. Langley (Township), 2007 BCCA 350, 70 B.C.L.R.
(4th) 73. While it is unusual for a party in a civil case not to testify, it is
not mandatory for a trial judge to draw an inference from her failure to do so:
Rimmer at para. 40.

[175]     Third,
there is no burden upon a defendant to prove her or his lack of negligence.

[176]     I decline
to draw an adverse inference here. Dr. Forest was examined for discovery. The
plaintiff has read in portions of that testimony. In these circumstances, the
plaintiff has had the opportunity to ask all relevant questions: Neen v.
Cobble Hill Grocery Ltd., 2006 BCSC 1494, 54 C.C.E.L. (3d) 59; Co-Operative
Fisheries Ltd. v. Canadian Imperial Bank of Commerce (1969), 7 D.L.R. (3d)
610 (Sask. Q.B.); Anderson v. Canada Safeway Ltd., 2004 ABCA 239, 357
A.R. 6; and Nash v. Olson, [1984] B.C.J. No. 1497 (C.A.), leave to
appeal ref’d [1984] S.C.C.A. No. 17.

5.         Was
Dr. Forest’s Conduct after October 20 Negligent?  If So, Did it Cause the
Plaintiff’s Loss?

[177]     The
plaintiff argues that Dr. Forest ought to have recognized that the plaintiff
was suffering cord compression on October 20 and ought to have immediately
referred the patient for medical treatment and should have discontinued any
chiropractic adjustments.

[178]     A health
care professional should only do the work for which she has been trained, and
should refer issues which she cannot or should not treat to someone who can.
Recognizing this fact, the Court has held that there is a duty upon a health
care professional in appropriate circumstances to refer a patient to another doctor:
Vail v. MacDonald, [1976] 2 S.C.R. 825. This duty is triggered where the
health care provider is unable to diagnose the patient’s condition, or if she
is not competent to provide the required treatment: Sicard v. Sendziak,
2008 ABQB 690, 98 Alta. L.R. (4^th) 44 at para. 113.

[179]     Where the
circumstances are urgent and a patient’s condition requires immediate
intervention, a health care professional must discharge this duty in a timely
fashion, and any delay in doing so may constitute negligence: Picard & Robertson,
Legal Liability of Doctors and Hospitals in Canada, 4^th ed.
at 314-15.

[180]     The
difficulty with this argument is that Dr. Yokoyama did not make a diagnosis of
cord compression either. He examined the plaintiff on October 22 and reached a
diagnosis of radiculopathy, that is, a pinched nerve.

[181]     Dr.
Gittens, with the benefit of hindsight, confirmed that this diagnosis by Dr.
Yokoyama was incorrect. The plaintiff was already suffering from myelopathy at
that time.

[182]     Neither
Dr. Forest nor for that matter Dr. Yokoyama is a neurologist. It may be that
with the specialized expertise of a neurologist, Ms. Kern’s condition might
have been diagnosed sooner. That does not mean that a general practitioner or a
chiropractor breaches the standard of care by not reaching such a conclusion.

[183]    
A similar conclusion was reached in Wallace v. Zradicka, supra.
There the plaintiff argued that the defendant should have diagnosed a
herniation of the lumbar disc and should have refrained from treating the plaintiff.
On the same day as Dr. Zradicka’s chiropractic treatment, the plaintiff
saw his physician. The physician, a general practitioner, examined the
plaintiff and found no signs of herniation. Chamberlist J. said at paragraph
69:

In coming to this conclusion I
simply rejected Dr. Jung’s assertion that detailed reassessments should have
taken place upon the report of pain shifting to the left on May 1st and upon
the report of leg spasm and bilateral calf tightness to meet the standard of
care expected by Dt. Zradicka. I agree with the defence submission that these
are merely examples of “negligence in the air” as there is no causation between
these alleged breaches on the part of Dr. Zradicka and the plaintiff’s later
symptoms. This conclusion is mandated by the fact that Mr. Wallace had such a
reassessment by Dr. Hillary, a trained medical practitioner, and that therefore
had such a reassessment been carried out by Dr. Zradicka it is most probably
that such neurological testing would have been negative as was found by Dr.
Hillary. As a result, chiropractic adjustment would have continued to be an
acceptable treatment.

[184]     Moreover,
the plaintiff called no expert evidence as to whether Dr. Forest’s conduct was
in breach of the standard of care. Rather the defendant relies on a comment made
by Dr. Potter.

[185]     The
defendants called Dr. Potter to give evidence on the subject of the conduct of
the defendants up to October 17. Counsel for the plaintiff sought to elicit
opinions from him as to Dr. Forest’s conduct after October 20. The defendants’
objection was upheld, relying on Haida Inn Partnership v. Touche Ross and
Co. (1989), 34 B.C.L.R. (2d) 80 (S.C.).

[186]     Nonetheless
it emerged in cross-examination that Dr. Potter made notes of the interaction
between Dr. Forest and the plaintiff during the October 20 – 27 time period. He
conceded that he identified a concern with whether the adjustment on October 21
had been appropriate.

[187]     That
statement was not admitted as opinion evidence. In preparing his report Dr.
Potter was not asked to form an opinion on that subject.

[188]     In any
event, if I am wrong in concluding that this adjustment of October 21 did not breach
the standard of care, there is no evidence that the adjustment caused any
further material injury beyond that caused by Dr. Somani. It would be merely
speculation on my part to conclude that it did.

Conclusion

[189]    
To summarize, I conclude:

1.         The defendants did not obtain the informed
consent of the plaintiff to their course of treatment.  However, the plaintiff
would have consented to treatment if she had been fully informed of the risks
and alternatives.

2.         Dr. Somani’s treatment caused the
plaintiff’s injury.

3.         Dr. Somani’s treatment was not negligent
and not in breach of the applicable standard of care.

4.         No adverse inference should be drawn from Dr.
Forest’s failure to testify.

5.         Dr.
Forest’s conduct on and after October 20 was not negligent but if it was it did
not cause the plaintiff’s injuries.

[190]     The
plaintiff’s claim is dismissed. Costs may be spoken to.

“Mr. Justice Kelleher”