IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110819

Docket: S102935

Registry:
Vancouver

Between:

Shirley May
Glaholt

Plaintiff

And

William H. Ross,
M.D., F.R.C.S.(C), Inc., William H. Ross, M.D.
and Herbert N. Fitterman, M.D.

Defendants

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]            
Ms. Glaholt lost most of the vision in her right eye in the period
after April 6, 2009. Because she had previously lost most of the vision in her
left eye, the vision loss has been particularly devastating.

[2]            
Ms. Glaholt alleges that her general ophthalmologist, Dr. Fitterman,
was negligent in the manner in which he referred her to Dr. Ross, an ophthalmologist
who specializes in retinal issues. Ms. Glaholt alleges that Dr. Ross
and his medical corporation are liable to her for battery and for negligence
with respect to giving her an injection in her eye on April 6, 2009. She claims
about $225,000 in damages. Ms. Glaholt’s claims proceeded to an eight-day
trial.

[3]            
The issues are as follows:

a)   
Did Dr. Ross reasonably
believe that Ms. Glaholt consented to receive an injection of Avastin into
her eye on April 6, 2009?

b)   
Was Dr. Ross negligent in
failing to fully inform Ms. Glaholt prior to the Avastin injection of the
risks of the procedure?

c)    
Was Dr. Fitterman negligent
in the manner in which he referred Ms. Glaholt to Dr. Ross?

d)   
If Dr. Ross and his
corporation are liable to Ms. Glaholt for battery, what are her damages?

e)   
If Dr. Ross is liable to Ms. Glaholt
for failing to fully inform Ms. Glaholt of the risks of the procedure,
what are Ms. Glaholt’s damages?

f)      If Dr. Fitterman is liable to Ms. Glaholt
for the manner in which he referred her to Dr. Ross, what are her damages?

[4]            
The factual disputes include conflicts in the evidence regarding what Ms. Glaholt
was told by Dr. Fitterman about the referral to Dr. Ross’s office,
and what was said and done by Dr. Ross and Ms. Glaholt prior to the
injection on April 6, 2009. The question of Ms. Glaholt’s overall
health was also contentious and relevant to whether any present limitations on
her activities result from vision problems or other problems such as leg and back
pain.

FACTS

a)       Background Medical Facts

[5]            
Visual acuity is the ability to see detail such as fine print. It is
measured by the ability to read a line of a certain print size on a chart at 20
feet. If a person can read the largest print size, the measurement is 20/400,
and if the person can read the smallest print size, the measurement is 20/20. Other
degrees of visual acuity have a second number between 20 and 400.

[6]            
The recommended standard for a personal-use driver’s licence in British
Columbia, including class 5, is not less than 20/50 with both eyes open and
examined together. In Canada, 20/200 with correction is considered legal
blindness. 

[7]            
The retina is the lining inside the eyeball, at the back of the head.
The centre part of the retina is the macula. It is where all the receptors are
for detail vision and colour. If the macula is functioning, a person can see
colour and fine detail. The peripheral retina relates to peripheral vision,
which involves shapes and vague vision. The vitreous is the jelly-like
substance in the back chamber of the eye.

[8]            
Macular degeneration, sometimes termed “MD”, is degeneration of the
central vision, and will affect the person’s ability to see colour and fine
detail. When it is age related, it is sometimes referred to as age-related macular
degeneration, or “AMD.”

[9]            
There are two types of MD: dry and wet. Dry MD progresses slowly,
requiring about 20 years for any serious loss of vision. Wet MD is very
serious. Left untreated, it will lead to blindness, sometimes within a day or
week. The visual loss is usually complete loss of central vision with very little
chance of recovery. The loss of the central vision means that there will be a
loss of colour and detail vision in the centre of the visual field. In wet AMD,
abnormal blood vessels grow in the back of the eye. Sometimes these vessels
leak blood or fluid that causes blurred or distorted vision, and can
permanently destroy vision. As MD advances, a person can only see bigger
letters on the visual acuity chart.

[10]        
There are two tests for diagnosing wet MD: a fluorescein angiogram, and
an optical coherence tomogram, also called an “OCT.” The OCT test is conducted
by a laser-based scanner which produces a three-dimensional picture of the
macular area of the eye. The OCT test is very sensitive and further testing may
not be required. The fluorescein angiogram is an older test. Dye is injected
into the patient’s bloodstream, and will show the blood vessels at the back of
the eye which typically fluoresce or leak profoundly during the procedure, and
that is photographed.

[11]        
There were three treatment options for wet MD in 2009:

a)   
Avastin, administered by injection
into the vitreous of the eye;

b)   
Lucentis, also administered into
the vitreous of the eye; and

c)     photodynamic therapy together with an injection of
either Avastin or Lucentis into the vitreous of the eye.

[12]        
Avastin and Lucentis are “anti-VEGF” medications. VEGF is “vascular
endothelial growth factor.” Blocking or inhibiting VEGF helps prevent further
growth of the blood vessels which can lead to leakage and haemorrhage.

[13]        
Treatment with intravitreous injection of an anti-VEGF medication
requires repeated injections. The number of injections required could vary
depending on the patient’s need. Treatment with an anti-VEGF medication can
arrest the progress of the wet MD, and about one third of the time actually improves
the patient’s vision.

[14]        
Most medications commonly used by ophthalmologists have not been
approved by Health Canada or the U.S. Food and Drug Administration (“FDA”) for
use in the eye. Such medications have often been tested for use on other parts
of the body, but because they have not been specifically tested in the eye following
Health Canada or FDA requirements, they have not been Health Canada-approved or
FDA-approved for use in the eye. Using such a medication in the eye is
sometimes referred to as “off-label” use. Essentially, drugs used “off-label”
have been approved by the medical community for the particular use, but have
not been approved by Health Canada or the FDA for that use.

[15]        
In 2009, Avastin was “off-label.” It had been proven safe and effective
for MD patients in clinical trials by ophthalmologists. In 2009, it was not
covered by the B.C. Medical plan, and patients obtaining Avastin treatment were
charged $350 per injection. For most ophthalmologists in 2009, Avastin was the
first choice of drug for treating wet AMD. Its effect usually lasted six weeks
and treatment usually required three injections. In short, it cost less and
required fewer injections than the other anti-VEGF medications.

[16]        
Lucentis is similar to Avastin. It was approved by the FDA for use in
the eye. In 2009, it was not covered by the B.C. Medical plan, and patients
obtaining Lucentis treatment were generally charged about $2,000 per injection.
Its effect usually lasted only four weeks. In contrast to Avastin, it cost more
and required more injections.

[17]        
At the time of trial, both Avastin and Lucentis were covered by the B.C.
Medical plan. Avastin remains the one used the most by ophthalmologists because
each treatment lasts longer and fewer injections may be required.

[18]        
Any injection into the eye carries a risk of infection. The risk is
about one in 4,000. An untreated eye infection can lead to blindness. An
eye infection can cause detachment of the retina.

[19]        
Any injection can also result in a haemorrhage in the vitreous part of
the eye.

[20]        
A detached retina can be treated by a surgical buckle to re-attach the
retina. However, the patient will lose some vision around the area of the
buckle.

[21]        
Endophthalmitis is an infection that typically occurs inside the eye
from various sources.

b)       Prior to Ms. Glaholt’s 1995 Right Eye Vision Loss

[22]        
Ms. Glaholt was born on November 21, 1930.

[23]        
Ms. Glaholt had three sons with her first husband. She separated
from him in about 1960. Ms. Glaholt worked in office jobs until about
1970, when she married her second husband. After that, she occasionally worked
part-time, and ran a dance studio. She was an avid ballroom dancer.

[24]        
Ms. Glaholt’s second husband passed away in 1981, and she moved to
the Vancouver area to be close to her children.

c)       1995 to 2008

[25]        
Ms. Glaholt lost most of the vision in her left eye as a result of a
car accident in 1995. She understood that she lost the vision in her left eye
as a result of bleeding in that eye. It took her a few years to adjust to
relying on her right eye alone.

[26]        
Ms. Glaholt first saw Dr. Fitterman, a general ophthalmologist,
on December 11, 1998. Dr. Fitterman removed cataracts from and implanted
multifocal lenses in both of Ms. Glaholt’s eyes. After that, her
uncorrected visual acuity was 20/20 in her right eye, and in her left eye had
improved from only being able to count fingers to 20/200 or a bit less. After
this surgery, Ms. Glaholt did not wear glasses or contact lenses.

[27]        
In 2001, Ms. Glaholt had coronary artery bypass surgery and
tissue-aortic valve replacement. Since that time she has had assistance from a
homemaker for varying amounts of time.

[28]        
On September 12, 2005, Ms. Glaholt fell down a flight of stairs at
the Burnaby Winter Club. She landed very hard on her right leg just below her
kneecap on the side, and injured her right knee.

[29]        
Ms. Glaholt saw Dr. Ignaszewski, a cardiologist, on December
20, 2005. He recorded that she did not exercise anymore, and that she had an
accident catching a bus which prevented her from using exercise machines. He
referred to her history of coronary artery bypass surgery and tissue-aortic
valve replacement, and that she had done well ever since. Dr. Ignaszewski wrote
in his consultation report to Dr. Horner, Ms. Glaholt’s family
doctor, that she had lately started Gabapentin for her back pain. Ms. Glaholt
testified that she did not take the Gabapentin for very long.

[30]        
In April 2006, Ms. Glaholt and her youngest son and his wife
purchased a property in Agassiz, B.C. Ms. Glaholt lived there for about
two years. For a period when she was living in the Kitsilano area of Vancouver,
she commuted the distance of about 120 km from her Vancouver home to work
in the Agassiz garden.

[31]        
Ms. Glaholt was seen by the Vancouver General Hospital spine clinic
on May 6, 2006, for evaluation of right leg pain. The consultation report
of Dr. Boyd recorded that Ms. Glaholt’s walking was limited to about six
blocks, and that she had difficulty standing for prolonged periods of time.

[32]        
Ms. Glaholt saw Dr. Amar, a specialist in gastroenterology, on
May 4, 2006. In his consultation report to Dr. Horner, he wrote that she
had a recent injury to the back which had led to the diagnosis of spinal
stenosis.

[33]        
On June 26, 2006, Ms. Glaholt saw Dr. Potter. He is an
ophthalmologist who specializes in diseases and surgery of the retina and
vitreous. Dr. Potter measured the acuity in Ms. Glaholt’s right eye
at 20/50 +2. Dr. Potter performed a procedure in July 2006 which resulted
in some improvement. He concluded that she did not need further treatment for
the retina, although he made a referral relating to another issue in her eye.

[34]        
Ms. Glaholt saw Dr. Horner on January 24, 2007. She reported
that her lower leg pain was continuing without improvement, and that she had pain
in her leg radiating to her buttock.

[35]        
Ms. Glaholt testified that she did not suffer sciatic pain until
late 2009. However, based on the medical records regarding back and right leg
pain, I reject that evidence and prefer the facts recorded in the medical
records.

[36]        
On January 25, 2007, Ms. Glaholt commenced a lawsuit against the
Burnaby Winter Club claiming damages from her September 12, 2005 fall.

[37]        
In February 2007, Ms. Glaholt was taking pain medication to walk to
errands like shopping. She had decreased social visits and was driving less. For
a period, she had homemaker services weekly.

[38]        
In March 2007, Ms. Glaholt saw Dr. Horner. He recorded that
she was suffering from depressed mood and from continued right leg pain.

[39]        
In May 2007, Ms. Glaholt suffered a fall while climbing stairs. She
fell forward and landed on her elbow. Also that month, she saw Dr. Horner.
Ms. Glaholt had moderately impaired kidney function. Dr. Horner
recommended increased medication for her blood pressure, but explained that it
could impact her kidney function, and she declined the increased medication.

[40]        
In July 2007, Ms. Glaholt saw Dr. Horner. He recorded
borderline renal function.

[41]        
Ms. Glaholt had a knee problem in 2007. Dr. O’Brien, an
orthopedic surgeon, treated a small meniscal tear with arthroscopy, but it did
not improve her symptoms significantly.

d)       2008 until the April 6, 2009 Injection

[42]        
Ms. Glaholt saw Dr. Horner on January 15, 2008. She was
suffering from insomnia and had a prescription for sleeping pills.

[43]        
Ms. Glaholt saw Dr. Ignaszewski again on January 22, 2008. He
diagnosed her with recurrent angina chest pain.

[44]        
Ms. Glaholt saw Dr. O’Brien, the orthopedic surgeon, again on
February 7, 2008. He noted that she had continued restrictions in walking,
standing and squatting because of pain in her right leg. He referred her for
further investigation.

[45]        
Dr. Potter, the retinal ophthalmologist, saw Ms. Glaholt again
on February 20, 2008. He noted that she reported some decreased vision in
her right eye over the past few months or so. He found her uncorrected acuity
in her right eye of 20/60 -1. He found some drusen suggestive of dry MD in the
right eye. He recommended that she take vitamins and self monitor with the
Amsler grid. He also recommended that she follow up with her general
ophthalmologist, Dr. Fitterman, to see whether there are any additional
manoeuvres that could be helpful.

[46]        
Dr. Mallek, an ophthalmologist in Dr. Fitterman’s practice,
saw Ms. Glaholt on February 29, 2008. He noted that she complained of
reduced distance vision. He measured her acuity in her right eye as 20/40, and
in her left eye as counting fingers at five feet. Dr. Mallek noted that
the appearance of the right macula was suspicious for wet AMD. He arranged for
a second opinion from a retinal specialist, this time Dr. Chui, about
whether Ms. Glaholt had wet AMD in her right eye. Dr. Mallek also
referred Ms. Glaholt to see Dr. Paton, a specialist in cancer of the
eye.

[47]        
Ms. Glaholt saw Dr. Horner’s associate on March 6, 2008. The
associate doctor recorded that Ms. Glaholt needed sleeping pills. She
referred Ms. Glaholt to Dr. Morrant, a psychiatrist, on the basis
that Ms. Glaholt was suffering depressed mood.

[48]        
Dr. Morrant saw Ms. Glaholt on March 25, 2008. He recorded a
number of concerns, including that problems in her right knee prevented
dancing, and that she had worries about her health and concerns about her
relationship.

[49]        
Dr. Horner saw Ms. Glaholt again on March 28, 2008. He
recorded that she felt like “everything is piling on top of me.”

[50]        
Dr. Chui is an ophthalmologist who specializes in the medical
treatment of retina problems. Dr. Chui saw Ms. Glaholt on April 9,
2008. In her consultation report to Dr. Mallek, Dr. Chui wrote that Ms. Glaholt
described lines “having a bump” in the middle. Dr. Chui recorded that Ms. Glaholt
reported suffering a distortion in her vision for two months and being unable
to read. Dr. Chui recorded uncorrected visual acuity in Ms. Glaholt’s
right eye of 20/40. Dr. Chui wrote that the right macula showed flecks of
haemorrhage with very early retinal thickening. She found no areas of retinal
neovascularization. Her OCT examination found early cystic retinal thickening
with distortion of the foveal architecture.

[51]        
Dr. Chui suspected that Ms. Glaholt was developing a choroidal
neovascular membrane in her right eye, which is wet MD. Dr. Chui wrote
that she discussed the use of anti-VEGF agents with Ms. Glaholt, but was
unsure if Ms. Glaholt fully understood, because she was fixated on having
“just” dry AMD. Dr. Chui gave Ms. Glaholt a prescription for drops to
use prior to anti-VEGF intravitreal injection should she agree to treatment
with Avastin or Lucentis.

[52]        
Dr. Chui suggested to Ms. Glaholt that she return to Dr. Potter
(the retinal ophthalmologist Ms. Glaholt had seen previously) for such
care if she felt uncomfortable with Dr. Chui, but Ms. Glaholt was not
interested in this either. Dr. Chui wrote that, in person and by telephone
on April 11, 2008, she recommended repeat fluorescein angiography to Ms. Glaholt,
but Ms. Glaholt declined and said she was seeing Dr. Fitterman on
May 1, 2008.

[53]        
Dr. Chui testified that she told Ms. Glaholt about the
anti-VEGF medications that were available, Avastin for $300 to $400 per treatment,
and Lucentis and Macugen, about $2,000 per treatment, and that treatment would
be required every 4 to 6 weeks. She testified that she also told Ms. Glaholt
about a laser Visudyne treatment, which at that time was sometimes used in
addition to an anti-VEGF medication.

[54]        
Ms. Glaholt testified that Dr. Chui told her about something
for her eye which would cost $2,000 to $3,000 or $3,000 to $4,000, and Ms. Glaholt
thought she would rather wait until Dr. Fitterman was back from vacation
and speak to him about it. Ms. Glaholt testified that her mind “just
closed off” when Dr. Chui suggested the expensive treatment, and she
wanted to discuss it with Dr. Fitterman and did not want to hear about it
from Dr. Chui. Ms. Glaholt testified that she thought her right eye
vision was fine at the time of her visit to Dr. Chui, and she did not
recall having a bump in the middle of lines. She testified that she did not
recall whether Dr. Chui told her how the expensive medication would be
administered. She did not recall talking to Dr. Chui on the telephone.

[55]        
Dr. Fitterman ordered a fluorescein angiography because of Dr. Chui’s
recommendation, and the result is discussed below.

[56]        
Ms. Glaholt went back to the spine clinic on April 8, 2008. Dr. Boyd’s
consultation report states that Ms. Glaholt continued to try and exercise by
walking and using a stationary bicycle, even though she had pain. Dr. Boyd
did not think that Ms. Glaholt’s back was contributing significantly to
her right knee symptoms.

[57]        
Ms. Glaholt fell on a bus on April 9, 2008, suffering injuries to
her right arm and hand after falling on her knees. This resulted in a bang to
her head and leg and in low back pain.

[58]        
Dr. Fitterman saw Ms. Glaholt on May 1, 2008. He recorded her
right eye vision acuity as 20/50, correctable to 20/40. He wrote that there was
no obvious neo-vascular membrane but some retinal pigment epithelial changes.
He ordered a fluorescein angiogram and provided a prescription for glasses. Ms. Glaholt
was not wearing any type of glasses at all at that time. Ms. Glaholt
testified that Dr. Fitterman told her that the new prescription was for
reading glasses.

[59]        
Ms. Glaholt saw Dr. Horner’s associate in May 2008. Ms. Glaholt
reported pain in her right leg most days, which worsened with activity such as
prolonged standing or walking as well as bending onto her knees. She reported
that she was able to walk three blocks and drive. She reported that she had
stopped dancing, bowling and walking on the treadmill owing to the right leg
pain, and had reduced housework and gardening due to difficulty kneeling. She
also reported headaches and that she needed sleeping pills.

[60]        
Dr. Fitterman saw Ms. Glaholt again on May 22, 2008, following
the flourescein angiogram. The study findings were normal. Dr. Fitterman reported
stunt vessels at the disk possibly related to previous retro vascular changes,
and that the retinal pigment epithelial changes are minimal with one punctate haemorrhage
at the lower macular border. He recommended that Ms. Glaholt continue the
tablets, check the Amsler grid once a month, and return in four months.

[61]        
Dr. Fitterman saw Ms. Glaholt again on September 8, 2008.
Again, he recorded her right eye acuity at 20/50. He recommended that she
return in six months.

[62]        
Dr. Horner saw Ms. Glaholt on October 7, 2008. She reported
low back pain causing insomnia and headache.

[63]        
In December 2008, Ms. Glaholt reported to Dr. Horner that she
continued to suffer pain over her right fibular area, which was worse with
walking, and so she would only walk for essentials. She reported using an
exercise bike 15 minutes a day.

[64]        
Dr. Fitterman saw Ms. Glaholt on February 23, 2009. He recorded
her right eye acuity as only 20/70, a loss of two lines of acuity from the
20/50 result recorded about five months earlier. Dr. Fitterman recorded no
haemorrhages or exudates present, although he in fact saw a microscopic bleed
in the centre of the macula. He recorded that her right eye dry AMD was
unchanged, with no retinal pigment changes. He wrote that he recommended an
OCT, a Goldmann field test, a changed prescription to change her glasses on the
right for driving, that she continue on the tablets, and that she return for
follow up in six months. The reason that he ordered the OCT exam was because he
was suspicious because of the drop in Ms. Glaholt’s visual acuity.

[65]        
Dr. Fitterman sees patients with dry AMD, but refers patients with
wet MD to a retinal specialist.

[66]        
Dr. Fitterman testified that he told Ms. Glaholt that there
were some changes going on in the macula, and she may have to be checked by a
retinal specialist, Dr. Ross. He testified that he told her that if
the results of the OCT were positive, and there was haemorrhage or swelling or
cystic changes in the macula, when she sees a macula specialist, he may say she
needs an injection into her eye. He testified that he did not explain anything
further to Ms. Glaholt regarding this treatment, thinking that it would be
the responsibility of the retinal specialist.

[67]        
Ms. Glaholt testified that Dr. Fitterman told her he wanted
her to take an MD test, and it was set up. She testified that he made it sound
like a general checkup he did for senior citizens, and that because the crew
was coming to his office with the OCT machine, she should have the test. She
did not agree that Dr. Fitterman told her she may need to see a retinal
specialist depending on the result of the OCT. Ms. Glaholt testified that Dr. Fitterman
told her the new prescription was for reading glasses. She did not fill the
prescription because her wallet was stolen.

[68]        
Ms. Glaholt saw Dr. Horner in March 2009. Her low back pain
was worse, and she still had difficulty walking.

[69]        
Ms. Glaholt underwent the OCT exam on March 27, 2009. It was administered
in Dr. Fitterman’s office, but by a technician, not Dr. Fitterman. Ms. Glaholt
and Dr. Fitterman did not see each other on the day of the test, and did
not speak to each other following the OCT until after the April 9, 2009
injection. The OCT test showed problems of swelling and haemorrhage, suggesting
wet AMD.

[70]        
On March 30, 2009, Dr. Fitterman’s office referred Ms. Glaholt
to Dr. Ross. Dr. Fitterman telephoned Dr. Ross at the time
of sending the referral note to him regarding Ms. Glaholt, but he did not
speak to Ms. Glaholt about the results of the March 27, 2009 OCT. Dr. Fitterman
did not decide to send Ms. Glaholt to see Dr. Ross until after he saw
the results of the March 27, 2009 OCT.

[71]        
Ms. Glaholt testified that Dr. Fitterman’s secretary called her
and said that Dr. Fitterman wanted her to see Dr. Ross on April 6,
2009. Ms. Glaholt testified that she did not question this, but thought
that perhaps Dr. Fitterman was planning on retiring and was sending
patients to other doctors.

[72]        
Ms. Glaholt saw Dr. Paton, a specialist in eye cancer, on
March 31, 2009. Dr. Mallek had referred Ms. Glaholt to Dr. Paton
in February 2008. It is likely that Dr. Paton saw Ms. Glaholt in March
2008 and that this was a one year follow-up. Dr. Paton’s records include
the note that Ms. Glaholt “saw Dr. Fitterman—had a ‘macular test’
last week; referred to W. Ross for next week.”

[73]        
In April 2009, Ms. Glaholt sold her interest in the Agassiz
property to her youngest son and his wife.

[74]        
Before April 6, 2009, Ms. Glaholt was an independent person. She went
to a community centre weekly to listen to a speaker and eat lunch. She
occasionally went to movies and plays, and watched her grandchildren play
sports. She did all her own grocery shopping, although she had a homemaker
about four hours each month. Ms. Glaholt sewed clothes for herself and her
granddaughter by hand. She regularly went to church across the city from her
home. She was lively and outgoing. She drove from the Kitsilano area of the
Lower Mainland to the Delta area to visit her family.

[75]        
Ms. Glaholt had a number of medical concerns before April 6, 2009.
She had back and neck pain, knee problems, spinal stenosis, heart problems,
headaches, and kidney impairment. She used medications to sleep.

e)       April 6, 2009

[76]        
Ms. Glaholt first saw Dr. Ross on April 6, 2009. She was 78
years old. The evidence of Ms. Glaholt and Dr. Ross differs about
what occurred on this day. Dr. Ross’s receptionist, Ms. Nguyen,
testified that she overheard some of the conversation between them.

i)      Dr. Ross’s chart and consultation report

[77]        
Dr. Ross’s chart and consultation report to Dr. Fitterman about
the April 6, 2009 visit both state that Ms. Glaholt’s right eye acuity was
measured at 20/60. They include results of Dr. Ross’s slit lamp
examination, optic disc examination, and peripheral retina examination of Ms. Glaholt.
The results of the OCT at Dr. Ross’s office were worse than the results of
the OCT at Dr. Fitterman’s office. Dr. Ross reported that the OCT
shows evidence of haemorrhage and edema in the foveal region. This was very
significant, because the fovea is at the centre of the macula, which is the
location of receptors for detail and colour.

[78]        
Dr. Ross’s impression was that the MD in Ms. Glaholt’s right
eye had converted to wet MD and she was going to lose her sight precipitously.
He thought it was imperative to give her an injection that same day. Dr. Ross’s
chart includes the entries that he reviewed the OCT findings with the patient, that
there was indication for Avastin injection, that she was advised of the 1%
chance of infection, and that she was given a prescription for antibiotics. The
chart includes the note that “during procedure, patient panicked and moved
head. Second attempt with new needle, patient cooperated, injection given.” Dr. Ross
planned to reassess Ms. Glaholt in six weeks.

ii)     Ms. Glaholt’s testimony

[79]        
Ms. Glaholt testified that she spoke to the receptionist at Dr. Ross’s
office, and then a technician administered eye drops and asked her to wait. She
testified that she was then taken to Dr. Ross’s office, and was there less
than five minutes. She testified that he told her this procedure would cost her
$350, but that he thought that it would be covered by B.C. medical coverage in
a few weeks. She testified that she wondered to what procedure Dr. Ross
was referring.

[80]        
Ms. Glaholt testified that Dr. Ross did not examine her eye
and did not discuss the OCT results with her or tell her that there was
bleeding and swelling at the back of her right eye. She testified that Dr. Ross
did not tell her that she would lose vision in her right eye without treatment,
and did not ask her if it was okay for him to proceed with an injection into
her eye.

[81]        
Ms. Glaholt testified that Dr. Ross tilted her head back and
opened her eye, and she thought he was going to administer an eye drop, but instead
he stuck a needle in her eye.

[82]        
Ms. Glaholt testified that she screamed and pushed Dr. Ross’s
arm down and said, “what did you do to me, what are you doing?” She testified he
said he had to do it again, and he did it again, and she screamed again and was
crying. She testified that Dr. Ross told her he had done 23 of those today
so far. She testified that Dr. Ross called in the friend who had
accompanied her to the appointment, and Dr. Ross wrote out a prescription
and told her to fill it.

[83]        
Ms. Glaholt testified that another person at Dr. Ross’s office
asked her to sign documents and she reluctantly did so, and when she asked what
she was signing, she was given a copy to take home. Ms. Glaholt denied
being told that she should call Dr. Ross’s office immediately if there
were redness, swelling or severe pain in her eye. She testified that another
person asked her to pay the $350, and she tried to do so using her debit card,
but was unable to remember the recently changed code and was not able to access
payment. Ms. Glaholt testified that the person told her she could pay the
next time she came to Dr. Ross’s office.

iii)    Dr. Ross’s testimony

[84]        
Dr. Ross is an ophthalmologist who specializes in diseases and
surgery of the retina and vitreous. He was chosen to be a fellow at the Wills
Eye Hospital in Philadelphia, a prestigious training centre for
ophthalmologists. He is considered to be a specialist in AMD and teaches
internationally on MD. He and a Dr. Maberley (the father of the Dr. Maberley
who testified at trial) run a fellowship program at UBC for ophthalmologists
specializing in medical and surgical retina. There are two fellows each year. One
of the fellowships is named in honour of Dr. Ross.

[85]        
Dr. Ross’s waiting room has about 22 chairs. Many patients wait in
the reception area while eye drops take effect. Dr. Ross’s examining room
is adjacent to the reception area. Dr. Ross testified that he administered
three injections before he saw Ms. Glaholt that day.

[86]        
Dr. Ross testified that he told Ms. Glaholt that Dr. Fitterman
was very concerned about her losing sight in her eye, and sent him an OCT
showing a problem of swelling and haemorrhage. Dr. Ross testified that he
told Ms. Glaholt that he repeated the test, and he showed her the test
result, and told her that the swelling meant that she now had wet MD, which is
a blinding condition. He testified that he told her the treatment was a new
drug, Avastin, which had been used in thousands of patients, and was effective
in many in stabilizing and hopefully improving vision. Dr. Ross testified
that he told Ms. Glaholt that she would require multiple injections, and
they would see her in six weeks after this first injection. Dr. Ross
testified that he told Ms. Glaholt it would cost $350, and she could
discuss payment with his staff after the injection.

[87]        
Dr. Ross testified that he told Ms. Glaholt that there was a
1% risk of infection. He testified that the risk was actually 1 in 4,000, but
he rounded it up to 1% to emphasize the importance of following instructions to
reduce the risk of infection.

[88]        
Dr. Ross testified that he told Ms. Glaholt that he had to
give her this injection and that it was urgent, that she had bleeding at the
back of her eye, and that she would lose vision if she did not proceed with the
injection. Dr. Ross testified that he tilted the chair back, and said he
would give an injection. Dr. Ross testified that he thought Ms. Glaholt
seemed to understand. In direct examination, Dr. Ross testified that he
asked Ms. Glaholt whether that was okay, and that she nodded and said,
“fine.” Under cross-examination, Dr. Ross agreed that Ms. Glaholt did
not say any words prior to the injection which could be construed as consent.
He testified that she nodded her head when he spoke to her and followed his
directions, and he thought she understood what he was doing.

[89]        
The speculum is a bladed instrument which holds the eyelids out of the
way. Dr. Ross testified that he put Ms. Glaholt’s chair back in a
fully reclined position, put a speculum in her eye, put freezing drops and then
iodine in her eye, and told her to hold still and look to the left. He testified
that Ms. Glaholt cooperated with his instructions. He testified that he
may have touched her eye with the needle, but she panicked, and pushed his arm
away, and may have asked him what he was doing. Dr. Ross testified that he
has probably given 6,000 such injections, and never before had a patient push
his hand away and say something like “what are you doing?”

[90]        
Dr. Ross discarded the needle which may have touched her eye. Dr. Ross
testified that he went over the reasons that Ms. Glaholt needed the injection,
again saying that it was urgent and she would go blind if she did not have the
injection. Dr. Ross testified that he took a second needle from beside
him, and again told her to sit back and hold still and look to the left. Dr. Ross
testified that Ms. Glaholt cooperated again with his instructions, and he
was able to give the second injection and administer the Avastin.

[91]        
Dr. Ross testified that Ms. Glaholt seemed a little confused
after the injection.

[92]        
Dr. Ross testified that in his opinion it was urgent for Ms. Glaholt
to have an Avastin injection, because Ms. Glaholt effectively had only one
eye, and because the OCT study both in Dr. Fitterman’s office and his
office showed active bleeding. Dr. Ross felt that it was very important
for him to administer treatment to Ms. Glaholt that day.

[93]        
Dr. Ross testified that if Ms. Glaholt had not agreed, he
would not have proceeded. He testified that he would have stopped and asked Ms. Glaholt
to talk the matter over with family, and would tell her that he recommended
that she have the procedure immediately.

iv)    Ms. Nguyen’s testimony

[94]        
Ms. Nguyen works as a medical assistant for Dr. Ross, greeting
and registering patients, preparing the examining room, assisting with some
injections, and reviewing medication with patients. Her desk is immediately
adjacent to Dr. Ross’s office. If his door is open, she can often hear
what is said in Dr. Ross’s office.

[95]        
Ms. Nguyen testified that Dr. Ross’s standard practice was to
go over with patients what he sees in OCTs. She testified that if he diagnoses
wet MD, he tells patients that it is bleeding at the back of the eye, that the
treatment is an injection called Avastin, and if they do not proceed with
treatment, they will lose their vision, and possibly go blind.

[96]        
Ms. Nguyen testified that Ms. Glaholt arrived and Ms. Nguyen
obtained the information she required to register Ms. Glaholt as a patient,
and then Ms. Glaholt waited. Ms. Nguyen testified that Ms. Glaholt
saw Ms. Wong, the ophthalmic technician, and after her pupils were
dilated, was given an OCT test.

[97]        
Ms. Nguyen testified that she overheard some of the conversation
between Ms. Glaholt and Dr. Ross. Ms. Nguyen testified that
she heard Dr. Ross tell Ms. Glaholt that she had a problem with
bleeding at the back of the eye, and she needed treatment with an injection
called Avastin. Ms. Nguyen testified that she did not hear Dr. Ross
tell Ms. Glaholt what would occur if she did not get treatment. Ms. Nguyen
testified that she heard Dr. Ross tell Ms. Glaholt that she needed to
be on antibiotics and there was a risk of infection. Ms. Nguyen testified
that she heard him say that the government does not pay for the medication and Ms. Glaholt
would need to pay for it.

[98]        
Ms. Nguyen testified that she heard Dr. Ross say something
about the risks of infection, apparently after the injection. Ms. Nguyen
testified that she did not hear Ms. Glaholt say anything while she was in
the room with Dr. Ross. Ms. Nguyen testified that Ms. Glaholt
was in Dr. Ross’s office for about 5 or 10 minutes before Dr. Ross
came out to call Ms. Glaholt’s friend into the room.

[99]        
Ms. Nguyen testified that Ms. Glaholt’s friend then went into Dr. Ross’s
office, but the door was closed and she did not hear what was said. She
testified that the door opened, and Ms. Glaholt and her friend came out,
and Ms. Glaholt was very upset, probably frightened, and maybe confused as
to what had happened.

[100]     Ms. Nguyen
testified that she reviewed the risks and the medication with Ms. Glaholt,
and in particular, pages 4 and 5 of the Consent Form discussed below. Ms. Nguyen
testified that Ms. Glaholt was not able to read the form, and that after she
reviewed the risk and the patient responsibility, Ms. Nguyen put her
finger on the page and asked Ms. Glaholt to sign it, and gave her an
unsigned copy to take home. Ms. Nguyen testified that she advised Ms. Glaholt
to contact the office if she had any concerns.

v)     Consent Form

[101]     Ms. Nguyen
provided Ms. Glaholt with a five-page form entitled “Informed Consent for
Avastin (Bevacizumab) Intravitreal Injection,” which I will refer to as the
“Consent Form.” At the time, Ms. Glaholt’s vision was blurred, and she did
not read the Consent Form. She signed or initialled the document in five
places, as discussed below.

[102]     The
Consent Form states that Avastin was used “off-label” to treat AMD. It states
that there are alternatives to Avastin, including FDA-approved injections of
Macugen and Lucentis. It also refers to FDA-approved photodynamic therapy with
Visudyne, and to “off-label” use of Kenalog, a long-acting cortisone-like drug,
into the vitreous of the eye. It states that there are no FDA-approved studies
about the use of Avastin in the eye that prove it is safe and effective. It
states that the benefits and risks of intravitreal Avastin for eye conditions
are not yet fully known. It states that the patient’s condition may not get
better or may become worse. It also refers to complications and side effects of
Avastin including retinal detachment and bleeding, and states that any of these
rare complications may lead to severe, permanent loss of vision. It also refers
to a side effect of eye pain.

[103]     The
Consent Form has a place for the patient to initial in three places under the
heading “Patient Responsibilities”. Ms. Glaholt signed under the initial
statement, which is that the patient will immediately contact the
ophthalmologist if certain signs develop, including pain, blurry or decreased
vision. Ms. Glaholt initialled after the second statement, which is that
the patient will report complications to other parts of the body to her primary
care physician or the emergency room and to the ophthalmologist. Ms. Glaholt
initialled after a third sentence relating to any surgery, including dental
surgery.

[104]    
The last page of the Consent Form states that the above explanation has
been read by or to the patient. It includes the following:

The nature of my eye condition has been explained to me and
the proposed treatment has been described. The risks, benefits, alternatives,
and limitations of the treatment have been discussed with me. All my questions
have been answered.

I understand that Avastin was
approved by the FDA for the treatment of metastatic colorectal cancer, and has
not been approved for the treatment of eye conditions. Nevertheless, I wish to
be treated with Avastin, and I am willing to accept the potential risks that my
physician has discussed with me.

Ms. Glaholt initialled after that statement.

[105]    
The last paragraph of the Consent Form states as follows:

I hereby authorized Dr. Ross
to administer the intravitreal injection of Avastin in my right eye at regular
intervals as needed. This consent will be valid until I revoke it or my
condition changes to the point that the risks and benefits of this medication
for me are significantly different.

Ms. Glaholt signed following that statement, and Ms. Nguyen
signed as witness to the signature.

vi)    Discussion

[106]     It is
clear that Ms. Glaholt could not read the Consent Form at the time she
signed it, and that she did not sign it until after the Avastin injection
procedure. As a result, whether Ms. Glaholt consented to the procedure and
was fully informed about it depends entirely on what was said between Dr. Ross
and Ms. Glaholt.

[107]     Ms. Glaholt
was a bright and engaging witness. She did not have a complete
recollection of her meeting with Dr. Ross. I accept that Dr. Ross
performed the testing indicated in the records. In addition, I accept the
evidence of Dr. Ross and Ms. Nguyen that Dr. Ross explained to Ms. Glaholt
that she had bleeding at the back of her eye, and that she needed treatment
with an injection of Avastin.

[108]     I accept Ms. Glaholt’s
evidence that she was surprised when Dr. Ross brought a needle to her eye.
That is why she pushed his hand away, and asked him what he was doing.

[109]     Dr. Ross
was an unusually careful and clear speaker as a witness. I accept his
evidence that he told Ms. Glaholt that she had bleeding at the back of her
eye, that she needed treatment with an injection of Avastin, that she could go
blind without the treatment, that there was a 1% chance of infection with the
injection, and that the treatment cost $350 per injection.

[110]     Ms. Glaholt
does not recall Dr. Ross telling her all of that. It is probable that, as
she did when she saw Dr. Chui, Ms. Glaholt’s mind “closed off” when Dr. Ross
told her that the treatment was not covered by medical insurance, and she
wanted to discuss any treatment with Dr. Fitterman and not Dr. Ross. Ms. Glaholt
did not appreciate the urgency of the treatment recommended by Dr. Ross,
and did not listen carefully to what Dr. Ross told her. Her failure to
listen carefully was likely primarily because she expected to discuss this with
Dr. Fitterman, but may have been partly related to hearing difficulties,
which Ms. Glaholt reported to Dr. Horner’s associate about three
months later.

[111]     Ms. Glaholt
followed the instructions of Dr. Ross to move her eyes as requested for
the injections.

f)        April 7, 2009 to May 29, 2009 Treatment by Dr. Ross after
the Injection

[112]     Ms. Glaholt
testified that right after the injection, her eye hurt. She testified that she
went home, but she was too upset to call Dr. Ross or Dr. Fitterman or
Dr. Horner on the day of the injection.

[113]     Ms. Glaholt
testified that the next day she could not see. She testified that a neighbour
read the Consent Form to her, and she was concerned about having had an
“experimental” drug. She called her son who took her to see Dr. Ross.

[114]     Ms. Glaholt
saw Dr. Ross on April 8, 2009. She presented with evidence of haemorrhage
and edema involving the macular region of her right eye. Dr. Ross measured
her right eye vision at 20/400. Dr. Ross found evidence of endophthalmitis
with haze in the vitreous cavity. He noted retinal haemorrhages in the
mid-equator region. Her retina was not detached.

[115]     Dr. Ross
diagnosed Ms. Glaholt with acute endophthalmitis in her right eye. He
arranged for her to receive intravitreal injections of several drugs within
minutes, and to start antibiotic drops and other medication. Dr. Ross’s
fellow administered three needles to Ms. Glaholt’s eye. He told her that
it was necessary to inject these antibiotics, and if he did not, she would be
blind “in no time.”

[116]     Ms. Glaholt
took the prescribed medication, including eye drops administered hourly for a
48-hour period, and later, with a break between 11:00 p.m. and 8:00 a.m.
She testified that the eye drops were painful.

[117]     On April
9, 2009, Ms. Glaholt’s right eye was scanned by a “B scan,” which is a
type of ultrasound examination. The ultrasonographer’s impression was that
there was a dense vitreous haemorrhage/debris/antibiotic material, mild
shimmering, and mild CR thickening consistent with endophthalmitis, and no
obvious retinal detachment.

[118]     Ms. Glaholt
was seen by Dr. Ross’s fellow for follow-up on April 9, 10, 11, 12 and 13,
2009. The only references to pain in those records are numerous references that
Ms. Glaholt reported no eye pain.

[119]     Dr. Ross
saw Ms. Glaholt on April 14, 2009. He noted that her vision was improving
and she could see hand movements. The infection was gone but some haemorrhage
remained.

[120]     Ms. Glaholt
had further B Scans on April 15, 2009 and April 20, 2009, and a further
follow-up examination on April 16. The ultrasonographer reported less haemorrhage
compared to each prior exam. The April 20, 2009 report states that there was no
evidence of endophthalmitis.

[121]     Dr. Ross
saw Ms. Glaholt again on April 20, 2009. He reported that she was able to
see hand movements with her right eye. He reported partial reabsorption of the
haemorrhage on the intraocular lens. He intended to continue with weekly
examinations, and hoped that the haemorrhage would slowly reabsorb and that she
would regain vision. She did not have a retinal detachment.

[122]     Dr. Fitterman
saw Ms. Glaholt on April 22, 2009. He saw some clearing of the haemorrhagic
deposit. He recommended continued treatment with eye drops to see how much of
the material would be absorbed.

[123]     Ms. Glaholt
had a further B scan on April 29, 2009. Again, there was no endophthalmitis.
There was no change in the haemorrhage from the last exam, and no obvious
retinal detachment.

[124]     Ms. Glaholt
saw Dr. Ross on May 4, 2009. Ms. Glaholt’s vision in her right eye
had improved to the point that she could count fingers and see the red top on a
bottle. The fact that she saw colour indicated that the macula was working. Dr. Ross’s
impression was that the vitreous haemorrhage was resolving. Dr. Ross
repeated the B scan that day. Again, there was no evidence of endophthalmitis,
and no change in the haemorrhage, and no obvious retinal detachment.

[125]     Dr. Ross
saw Ms. Glaholt on May 11, 2009. Her vision was 20/400. Her near vision
was 20/80, which meant the macula was working. Her vision was improving.

[126]     Dr. Fitterman
saw Ms. Glaholt on May 22, 2009. The blood had mostly cleared. Ms. Glaholt
told Dr. Fitterman she was going to another retinologist.

g)       May 29, 2009 to Trial

[127]     Ms. Glaholt
did not keep the follow-up appointment scheduled with Dr. Ross for May 29,
2009. She asked Dr. Horner to refer her to another ophthalmologist for a
second opinion, and he referred her to Dr. Albiani.

[128]     Dr. Albiani
is an ophthalmologist specializing in medical and surgical issues relating to
the retina. Dr. Albiani examined Ms. Glaholt on May 29, 2009. His
examination included OCT testing and a fluorescein angiography. He found the
acuity in her right eye to be 20/200 at distance. Dr. Albiani diagnosed a
vitreous haemorrhage with dry macula, and no evidence of active inflammation.
He did not recommend any further treatment at that time apart from seeing her
again in one month or sooner if necessary.

[129]     Ms. Glaholt
saw Dr. Horner’s associate on July 10, 2009. She noted that Ms. Glaholt
reported hearing problems, and could not hear conversations in a group. She
referred Ms. Glaholt to an ear, nose and throat specialist, Dr. Woodham,
for her hearing complaints.

[130]     Dr. Woodham
saw Ms. Glaholt and reported on July 15, 2009, that she had hearing loss
with tinnitus.

[131]     Ms. Glaholt’s
eyes were examined by angiography on August 7, 2009. Dr. Albiani noted
occult leakage with cystoid macular edema in her right eye.

[132]     Dr. Potter,
the retinal ophthalmologist who saw Ms. Glaholt in June 2006 and February
2008, saw Ms. Glaholt again on August 12, 2009. He measured her
uncorrected acuity in her right eye at 20/200 -1. He observed some smouldering
activity in both maculas. These were signs suggesting that the AMD was no
longer dry but was leaking and becoming “wet.”

[133]     Dr. Potter
saw Ms. Glaholt again on August 17, 2009, and noted right eye acuity of
20/400.

[134]     Ms. Glaholt
saw Dr. Teal, a specialist in neurology, on October 6, 2009. Dr. Teal
recorded that Ms. Glaholt reported low back pain for the prior three
months. He recorded that she can walk three blocks and has to sit and rest, and
that her leg pain is aggravated by walking.

[135]     Ms. Glaholt
stopped her weekly trips to the community centre.

[136]     The Dr. Maberley
who testified at trial is an ophthalmologist who specializes in disease and
surgery of the retina and vitreous. He saw Ms. Glaholt on October 20, 2009
and diagnosed a detached retina in her right eye. He scheduled surgery for
October 26, 2009.

[137]     Ms. Glaholt
testified that Dr. Maberley told her that her retina had been detached,
and she needed surgery as quickly as possible, or she would go blind. She
testified that she responded, “whatever it takes, I don’t want to go blind.”

[138]     Dr. Maberley
performed surgery on Ms. Glaholt’s right eye on October 26, 2009. He
repaired her detached retina with a scleral buckle.

[139]     Ms. Glaholt
testified that it took nine weeks for her to recover from the surgery for the
retinal detachment. She testified that for the first four days, she maintained
a face-down position. She testified that for the nine weeks, her vision was
like looking through a glass partly filled with water, and the water level
dropped slowly during the nine-week period. She said this was annoying and
painful, and there was not much she could do during the nine-week period. She
said the bruises around her eyes took months to disappear.

[140]     Ms. Glaholt
saw Dr. Teal again on December 15, 2009. She continued to report problems
in her back with low back pain and leg pain. Dr. Teal recommended steroid
injections.

[141]     Dr. Maberley
saw Ms. Glaholt again on December 22, 2009. He measured Ms. Glaholt’s
acuity in her right eye at 20/400. He noted diffuse macular edema, and that
supplemental Avastin should be considered. He diagnosed Ms. Glaholt with
wet AMD in her right eye.

[142]     Dr. Maberley
saw Ms. Glaholt again on March 9, 2010. He recorded her acuity in her
right eye at 20/100 -2. He wrote that she would like to avoid an intravitreal
injection if at all possible. He wrote that she had excellent vision with a new
prescription, although he also wrote that she had no subjective change in her
vision since the last visit. He diagnosed her with cystoid macular edema in her
right eye.

[143]     Dr. Maberley
saw Ms. Glaholt again on May 4, 2010. He measured her acuity in her right
eye at 20/400. He wrote that she had chronic macular edema despite intensive
topical therapy, and that periocular Kenalog should be considered. He wrote
that the risks, benefits and alternatives to periocular Kenalog were discussed
in great detail.

[144]     Ms. Glaholt
received two Kenalog injections from Dr. Maberley prior to trial.

h)       At Trial in February and March 2011

[145]     All three
of Ms. Glaholt’s sons are married and have children. Two of her sons and
their wives, and five of her seven grandchildren live in the Lower Mainland
area of B.C. Her other son, his wife, and her other two grandchildren live in
Prince George. Ms. Glaholt sees less of her family members in the Lower Mainland
than she did when she could drive to their homes.

[146]     Ms. Glaholt’s
two surviving siblings are sisters who are a few years younger than Ms. Glaholt.
Ms. Glaholt’s mother passed away from surgery at the age of 40, but her
father lived to age 87. Ms. Glaholt’s grandparents lived to the ages of 88
to 94. Ms. Glaholt is 80 years old.

[147]     Ms. Glaholt
can see clearly within about 18 to 24 inches. Beyond that distance, her vision
is blurry. As a result, it is difficult for her to recognize a person, which is
upsetting. She uses magnifying devices for reading and computer work. She is
bothered by bright lights. Her eyes tire easily.

[148]     Ms. Glaholt
has hearing loss and tinnitus. Because of her focus on her vision problems, she
has not pursued treatment for her hearing problems. Ms. Glaholt had
difficulty hearing some of the questions which were put to her at trial, and
found that frustrating and upsetting.

[149]     Ms. Glaholt
suffers daily headaches and sleep problems. She takes medication daily to
reduce her blood pressure and for pain.

[150]     Ms. Glaholt
continued to suffer problems relating to her right knee injury at the winter
club in 2005.

[151]     At trial, Ms. Glaholt
wore a wrist device for carpal tunnel syndrome. She was taking a course in pain
management, attending for two hours each week. She no longer attends movies or
plays or watches her grandchildren play sports. She cannot thread a needle and no
longer sews. She occasionally goes to a nearby church, but is not close to the
other church members, and only rarely goes to the church across town. She reads
much less than she did before the injection.

[152]     Ms. Glaholt
has a homemaker who works three hours each week. Most of Ms. Glaholt’s grocery
shopping is done by her homemaker or is delivered by the store to Ms. Glaholt’s
home. Occasionally, Ms. Glaholt will buy a few grocery items herself, but
she has difficulty reading prices and labels.

[153]     Ms. Glaholt
tries to exercise by walking around in her apartment. She spends so much time
looking after herself that she has little time for social activities.

[154]     Ms. Glaholt
testified that she would follow ophthalmologist recommendations about how best
to treat her vision. She also testified that if she understood that a treatment
would potentially avoid blindness, she would pursue it.

i)        Medical Evidence

i)      Dr. Maberley

[155]     Dr. Maberley
testified at the request of Ms. Glaholt. He was accepted as able to
provide expert evidence in the area of ophthalmology with a specialization in
the medical and surgical management of diseases of the retina and vitreous. He
performed the surgery on Ms. Glaholt on October 26, 2009 to repair the
retinal detachment. He also treated her with an injection of Kenalog into the
wall of her eye, which is “off-label” use.

[156]     In his
written opinion dated December 2, 2010, Dr. Maberley wrote that “the
infectious endophthalmitis that followed [Ms. Glaholt’s] initial injection
could have led to further macular (central) damage and vision loss (beyond that
attributable to the macular degeneration) due to the bacterial endotoxins that
are liberated inside the eye as part of this process and its treatment”.

[157]     At trial, Dr. Maberley
expanded his evidence. Although his opinion exceeded the original written
opinion, the evidence was accepted on the basis that there was no prejudice to
the defence, which was in a position to respond to it.

[158]     Dr. Maberley’s
evidence at trial was that the infectious endophthalmitis that followed Ms. Glaholt’s
initial injection was “most likely” responsible for the vision loss “beyond
that attributable to the macular degeneration”. Dr. Maberley agreed that Ms. Glaholt
had macular damage and vision loss even before she saw Dr. Ross on April
6, 2009, and that had nothing to do with the injections.

[159]     Dr. Maberley
testified that the normal history of endophthalmitis is that of typically
significant, permanent, severe vision loss, often despite best treatment.

[160]     Dr. Maberley
wrote that Ms. Glaholt’s detached retina was repaired with a scleral
buckle, vitrectomy and endolaser. Laser was required inferotemporally anterior
to the equator of the globe. This would have left Ms. Glaholt with a
degree of peripheral, superonasal visual field loss. Additionally, the eye
wall indentation of the scleral buckle may have caused some further,
far-peripheral field loss in other quadrants.

[161]     In other
words, as a result of the surgery for the detached retina, Ms. Glaholt
would have had a degree of vision loss above the nose, which was peripheral
vision, and not vision needed for reading or other detail work. She would also
have other far peripheral field loss. However, her degree of peripheral
supranasal visual field loss probably would not disable her from driving.

[162]     Dr. Maberley
wrote that it can be reasonably assumed that the detached retina which he noted
on October 20, 2009, during his initial evaluation of her eye was caused by one
or a combination of: (1) the interrupted Avastin injection; (2) the subsequent
Avastin injection; (3) the intravitreal antibiotic injection; and/or (4) the
removal of vitreous fluid for culture as part of the treatment of the
endophthalmitis. These procedures are typically performed through an
inferotemporal site on the globe which would correspond to the location of the
detachment and retinal scar he noted intraoperatively. The presence of a
demarcation line and the small retinal holes – due to traction from scarring on
the retinal surface – suggest a degree of chronicity that would reasonably fit
with the procedures that had been performed in April 2009.

[163]     Dr. Maberley
testified that the injection probably caused the endophthalmitis, and the
vitreous haemorrhage may have occurred with the primary or the secondary
injections for the infection.

[164]     Dr. Maberley
measured Ms. Glaholt’s acuity in her right eye at 20/400, and he suspects
that her vision in that eye will remain at its current level. He has not noted
any improvement in her vision despite treatment of residual macular edema and
choroidal neovascular activity with periocular triamcinolone and a further
Lucentis injection.

ii)     Dr. Finlay

[165]     Dr. Finlay
was accepted at trial as able to give opinion evidence as an ophthalmologist specializing
in surgical and medical treatment of the retina. He testified at the request of
the defence on the standard of care of Dr. Ross. He did not examine Ms. Glaholt,
and his opinion was based entirely on his review of records.

[166]     In Dr. Finlay’s
opinion, Dr. Ross met the standard of care for a retinal specialist. In Dr. Finlay’s
opinion, it was appropriate for Dr. Ross, following his review of the OCT,
to recommend treatment by Avastin. Dr. Finlay assumed that Ms. Glaholt
gave her verbal consent for the procedure. Dr. Finlay concluded that the
treatment of the endophthalmitis was exemplary, and was probably higher than
the usual standard of care because Dr. Ross had retinal fellows who were
able to assist him in seeing her frequently.

[167]     Dr. Finlay
was asked to respond to Dr. Maberley’s trial evidence. In Dr. Finlay’s
opinion, it was not likely that there was additional tissue or retinal damage
from the endophthalmitis. He considered the rapid treatment of the
endophthalmitis, the fact that Dr. Albiani did not see any inflammation,
and the absence of any observations consistent with such damage. In Dr. Finlay’s
opinion, it is likely that Ms. Glaholt’s MD was continuing to progress.

[168]     However, Dr. Finlay
understood that Dr. Ross recorded Ms. Glaholt’s vision at 20/80 right
after treatment. Dr. Ross sent Dr. Fitterman a consultation report
dated May 29, 2009, in which he referred to Ms. Glaholt’s vision being in
the 20/80 range. However, that statement appears to be an error. Dr. Albiani
examined Ms. Glaholt on May 29, 2009, and found the acuity in her right
eye to be 20/200 at distance. He measured it on March 9, 2010 at 20/100. Dr. Potter
measured it on August 12, 2009 at 20/200.

[169]     Dr. Finlay
agreed that the infection was caused by the injection of Avastin, although not
by the drug itself. In his opinion, the vitreous haemorrhage was caused by
either the injection of Avastin or the injection of the antibiotics to treat
the endophthalmitis. In his opinion, the retinal detachment was likely caused
by the treatment for the endophthalmitis.

[170]     In Dr. Finlay’s
opinion, a patient considering an injection should be informed of the risk of
infection that would cause a vision loss. In his practice, he tells the
patient that there is a risk of infection, but he does not use the words vision
loss. In his opinion, referring to the risk of an eye infection implies
that there may be a vision loss. 

iii)    Dr. Goldberg

[171]     Dr. Goldberg
is an ophthalmologist in private practice. He testified at the request of the
defence on the standard of care of Dr. Fitterman.

[172]     Dr. Goldberg’s
opinion is that Dr. Fitterman met the appropriate standard of care
expected of a general ophthalmologist during his assessments and treatment of Ms. Glaholt.
In his opinion, on reviewing the March 27, 2009 OCT, it was incumbent on Dr. Fitterman
to arrange prompt referral to a retinal specialist, which is what he did in
making the referral to Dr. Ross. 

[173]     Dr. Goldberg
assumed that Dr. Fitterman’s version of events was correct.

[174]     Dr. Goldberg
testified that it was common to advise a patient that if a test result indicates
it would be beneficial to a patient, the general ophthalmologist will make a
referral to a specialist in that area of ophthalmology. He testified that in
his office, if a patient had not been told that she might be referred to a
specialist depending on the result of the test, the office staff member would
advise the patient that there was something identified on the test that
required the attention of a subspecialist. However, he did not testify that
failure to give that information to the patient would be below the standard of
practice of general ophthalmologists.

iv)    Discussion

[175]     All of the
experts who testified were well-qualified.

[176]     There was
no dispute over Dr. Goldberg’s evidence, although there was dispute over
his factual assumptions. I accept his opinion, but discuss the factual issues
below.

[177]     Drs.
Maberley and Finlay agreed, and I accept, that the Avastin injection caused the
endophthalmitis, and either that injection or the treatment for the
endophthalmitis caused the haemorrhage and the retinal detachment. They also agreed
and I also accept that the treatment for the retinal detachment caused Ms. Glaholt
peripheral vision loss. 

[178]     However, Drs.
Maberley and Finlay disagreed on whether the endophthalmitis caused Ms. Glaholt
to suffer central vision loss.

[179]     Dr. Maberley’s
conclusion was based simply on the fact that endophthalmitis can cause central
vision loss. His written opinion stated that the endophthalmitis “could
have” caused the central vision loss, while his opinion at trial was that it “likely”
did so. He also qualified his opinion by limiting the loss to that “beyond that
attributable” to the MD, without explaining how much loss he was referring to
from the MD.

[180]     In
contrast, Dr. Finlay’s conclusion was based on the fact that Ms. Glaholt
had wet MD, which can progress quickly and cause central vision loss, and the
fact that there was no evidence of problems from the endophthalmitis. However, Dr. Finlay
assumed that Dr. Ross had tested Ms. Glaholt’s visual acuity
following the injection at 20/80, which was incorrect.

[181]     It is
apparent that both endophthalmitis and wet MD are very serious, and both can
cause central vision loss. I have considered the evidence concerning the
rapidity of central vision loss from wet MD. I have also considered that Dr. Ross
measured Ms. Glaholt’s vision on May 11, 2009, at 20/400 and her near
vision at 20/80, demonstrating that the macula was working. I have also
considered that Dr. Albiani measured Ms. Glaholt’s acuity on May 29,
2009, to be 20/200 at a distance, indicating improvement from the test a couple
of weeks earlier. He also measured it on March 9, 2010, at 20/100, indicating
further improvement. Dr. Potter measured it on August 12, 2009 at 20/200. Dr. Maberley
measured it at 20/400 on May 4, 2010.

[182]     The
sequence of visual acuity measurements suggests that Ms. Glaholt’s vision
improved until early 2010, essentially resolving from the endophthalmitis, haemorrhage
and retinal detachment, and then worsened from wet MD starting after March 9,
2010.

[183]     In light
of that, I prefer the evidence of Dr. Finlay, and conclude that Ms. Glaholt’s
central vision loss was caused by the wet MD, not the Avastin injection, or the
treatment for the endophthalmitis or the retinal detachment.

ANALYSIS

I.        LIABILITY

a)       Did Dr. Ross reasonably believe that Ms. Glaholt
consented to receive an injection of Avastin into her eye on April 6, 2009?

[184]     The tort
of battery is “an intentional one, consisting of an unprivileged and
unconsented to invasion of one’s bodily security”. It has “some advantages for
a plaintiff over an action of negligence since it does not require proof of
causation and it casts upon the defendant the burden of proving consent to what
was done” (Reibl v. Hughes, [1980] 2 S.C.R. 880 at 890).

[185]    
Laskin J. explained the limitations to the battery analysis in medical
cases at 890 – 91 of Reibl v. Hughes, as follows:

The well-known statement of
Cardozo J. in Schloendorff v. Society of New York Hospital [(1914), 211
N.Y. 125 at 129, 105 N.E. 92 at 93] that “Every human being of adult years and
sound mind has a right to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient’s consent commits an
assault, for which he is liable in damages” cannot be taken beyond the compass
of its words to support an action of battery where there has been consent to
the very surgical procedure carried out upon a patient but there has been a
breach of the duty of disclosure of attendant risks. In my opinion, actions of
battery in respect of surgical or other medical treatment should be confined to
cases where surgery or treatment has been performed or given to which there has
been no consent at all, or where, emergency situations aside, surgery or
treatment has been performed or given beyond that to which there was consent.

[186]    
The common law concerning consent was codified in British Columbia by
the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C.
c. 181 (“HCCA”). Section 9 includes the following:

9(1)      Consent to health care may be
expressed orally or in writing or may be inferred from conduct.

[187]    
Whether a battery occurs will depend on whether the physician reasonably
believed the patient had consented to treatment. In Allan v. New Mount Sinai
Hospital (1980), 109 D.L.R. (3d) 634, 28 O.R. (2d) 356 (H.C.J.), (rev’d on
other grounds (1981), 125 D.L.R. (3d) 276 (Ont. C.A.)), an anaesthetist was
held not to have reasonably believed the patient consented to the treatment,
and was therefore liable for battery. Linden J. wrote as follows at 641 [cited
to D.L.R.]:

Although I find that there has been no negligence proven in
the way in which the anaesthetic was administered by Dr. Hellman, there
may be responsibility in battery. Battery is the intentional application of
offensive or harmful physical contact to a person. Any surgical operation is a
battery, unless the patient consents to it. The onus of establishing that there
has been consent is on the doctor: Picard, The Legal Liability of Doctors
and Hospitals in Canada (1978), p. 71; Schweizer v. Central
Hospital (1974), 6 O.R. (2d) 606, 53 D.L.R. (3d) 494; Kelly v. Hazlett
(1976), 15 O.R. (2d) 290, 75 D.L.R. (3d) 536, 1 C.C.L.T. 1.

The administration of an
anaesthetic is a surgical operation. To do so would constitute a battery,
unless the anaesthetist is able to establish that his patient has consented to
it. It is not up to the patient to prove that he refused; it is up to the doctor
to demonstrate that a consent was given. An actual, subjective consent,
however, is not always necessary if the doctor reasonably believes that the
patient has consented. Thus, if a patient holds up an arm for a vaccination,
and the doctor does one, reasonably believing that the patient is consenting to
it, the patient cannot complain afterwards that there was no consent: O’Brien
v. Cunard SS. Co (1891), 28 N.E. 266. Silence by a patient, however, is not
necessarily a consent. Whether a doctor can reasonably infer that a consent was
given by a patient, or whether he cannot infer such consent, and must respect
the wishes of the patient, as foolish as they may be, always depends on the
circumstances.

See also: Nelitz v. Dyck (2001), 52 O.R. (3d) 458
at paras. 30-32 (C.A.) and Toews v. Weisner and South Fraser Health
Region, 2001 BCSC 15 at paras. 16-19.

[188]     The
question is therefore whether a reasonable person in Dr. Ross’s position
would have thought that Ms. Glaholt consented to the injection of Avastin.

[189]     Ms. Glaholt
had a blinding condition which required prompt treatment. Dr. Ross
explained that to her. The risk of infection was less than 1%, while the risk
of going blind without treatment was a certainty. There was no reason to delay
treatment.

[190]     Ms. Glaholt
did not tell Dr. Ross that she did not want the treatment. She did not
expect him to do it immediately, and thought that she could discuss it with Dr. Fitterman,
but that was not because of anything Dr. Ross told her. That was simply an
assumption she made.

[191]     Ms. Glaholt
cooperated with Dr. Ross by following his instructions concerning movement
of her body and eyes. She did not express any concern about the treatment.

[192]     After Dr. Ross’s
first attempt to inject the Avastin, Dr. Ross again explained the need for
the treatment. Ms. Glaholt understood that he told her she needed to have
the treatment, and she again followed Dr. Ross’s instructions.

[193]     In these
circumstances, Dr. Ross reasonably believed that Ms. Glaholt
consented to the injection of Avastin. Her claim for battery against Dr. Ross
must therefore be dismissed.

b)       Was Dr. Ross negligent in failing to fully inform Ms. Glaholt
prior to the eye injection of the risks of the procedure?

[194]     A
physician must disclose to a patient the nature of a proposed treatment, its
gravity, any material risks, and any special or unusual risks attendant upon
the treatment. The scope of the duty and whether or not there has been a breach
must be decided in relation to the circumstances of each case. See Hopp v.
Lepp, [1980] 2 S.C.R. 192 at 210 and Reibl v. Hughes at 884.

[195]     The Court
must consider two questions: first, whether Ms. Glaholt had the requisite
information to provide informed consent; and second, if not, whether a
reasonable person in her circumstances would have consented to the procedure if
provided with that information. That is because the failure to give an adequate
warning will have caused Ms. Glaholt damage only if a reasonable person in
her circumstances would have refused consent. See Diack v. Bardsley (1983),
46 B.C.L.R. 240 at 248 (S.C.), aff’d (1984), 31 C. C.L.T. 308 (B.C.C.A.) and Reibl
v. Hughes at 898-899.

[196]     Dr. Ross
made a note that he advised Ms. Glaholt of the risk of infection. Ms. Nguyen
testified that she heard Dr. Ross tell Ms. Glaholt that she needed to
be on antibiotics and there was a risk of infection. Dr. Ross was clearly
concerned about the risk of infection, and wanted to ensure that Ms. Glaholt
applied the eye drops as required. Ms. Glaholt has an incomplete
recollection of what Dr. Ross told her.

[197]     I accept Dr. Ross’s
evidence that he warned Ms. Glaholt that there was a 1% risk of infection
following an Avastin injection. This met the standard of care described by Dr. Finlay.

[198]     In any
event, a reasonable person in Ms. Glaholt’s circumstances would have
consented to the Avastin injection if provided with information about its risks.
The risk of blindness if the wet MD was left untreated was certain. The risk of
infection was no more than 1%. Ms. Glaholt relied on her right eye. She
had previously undergone eye surgery for cataracts and for implantation of
multifocal lenses, and she has subsequently received Lucentis injections.
Although Ms. Glaholt did not follow Dr. Chui’s recommendations in
April 2008 and instead saw Dr. Fitterman, Dr. Chui did not tell Ms. Glaholt
that she had a certain diagnosis of wet MD and that blindness was a certainty
if she were untreated. There is nothing in Ms. Glaholt’s subjective
circumstances that would have made it unreasonable for her to have consented to
the Avastin treatment.

[199]     The benefits
of the Avastin treatment overwhelmingly outweigh the risks. It would have been
unreasonable for Ms. Glaholt to have refused treatment.

[200]     Ms. Glaholt’s
claim that Dr. Ross was negligent must be dismissed.

c)       Was Dr. Fitterman negligent in the manner in which he
referred Ms. Glaholt to Dr. Ross?

[201]     Dr. Fitterman
ordered the OCT test because he was suspicious about Ms. Glaholt’s vision
loss. He did not make reference in his consultation report to Dr. Horner
about that concern, and instead the report looks routine. However, Dr. Fitterman
testified that he told Ms. Glaholt that he might refer her to Dr. Ross.

[202]     Dr. Fitterman
had enough suspicion to order an OCT, but did not decide to make the referral
until after he saw the OCT. He did not speak to Ms. Glaholt between
ordering the OCT and the date that she saw Dr. Ross.

[203]     Dr. Paton
recorded, apparently from Ms. Glaholt’s report, that Ms. Glaholt had
had an OCT test and had been referred to Dr. Ross. That does not
establish that Ms. Glaholt understood that there was a connection between
the OCT test and the referral to Dr. Ross. It only establishes that
she knew about those two events.

[204]     Ms. Glaholt
was definite that she thought she was seeing Dr. Ross because Dr. Fitterman
was retiring, although she admitted that Dr. Fitterman had not told her
that.

[205]     Dr. Fitterman
did not have perfect memory of the referral. For example, he corrected his
evidence at trial about whether he spoke to Dr. Ross about his referral of
Ms. Glaholt.

[206]     It is more
probable than not that Dr. Fitterman told Ms. Glaholt that he was
sending her for a test, and depending on the result, he might refer her to a
specialist. That is probable because Dr. Fitterman was well aware of the
significance of a diagnosis of wet MD, and the need for urgent treatment. It is
probable that Ms. Glaholt did not particularly pay attention to the
possibility that she might be referred to a specialist, and instead focussed on
the fact that she was to have another test.

[207]     In any
event, the evidence did not establish that the standard of care of a general
ophthalmologist would require him or her to tell the patient the reason for the
referral to a specialist ophthalmologist. The duty on the general
ophthalmologist like Dr. Fitterman on reviewing the March 27, 2009 OCT was
to refer Ms. Glaholt to a specialist like Dr. Ross. Dr. Fitterman
did so, and in fact, told Dr. Ross about his concerns.

[208]     Ms. Glaholt’s
claim of negligence against Dr. Fitterman must be dismissed.

II.       DAMAGES

d)       If Dr. Ross and his corporation are liable to Ms. Glaholt
for battery, what are her damages?

[209]     The claim
in battery against Dr. Ross and his corporation is dismissed. It is
therefore not necessary to assess damages for battery.

e)       If Dr. Ross is liable to Ms. Glaholt for failing to
fully inform Ms. Glaholt of the risks of the procedure, what are Ms. Glaholt’s
damages?

[210]     The claims
in negligence against Dr. Ross and his corporation are dismissed. It is
therefore not necessary to assess damages for negligence against Dr. Ross
or his corporation.

f)        If Dr. Fitterman is liable to Ms. Glaholt for the
manner in which he referred her to Dr. Ross, what are her damages?

[211]     The claim
in negligence against Dr. Fitterman is dismissed. It is therefore not
necessary to assess damages for negligence against Dr. Fitterman.

SUMMARY

[212]     Ms. Glaholt
has suffered severe vision loss in her right eye since April 6, 2009. This has
been particularly devastating because she had lost most of the vision in her
left eye in 1995.

[213]     Ms. Glaholt
suffered endophthalmitis, which is an eye infection, after receiving the
Avastin injection from Dr. Ross on April 6, 2009. Such an infection is a
rare risk of any eye injection. Unfortunately, Ms. Glaholt fell into the
group of fewer than 1% who suffer such an infection. As a result of the
infection, Ms. Glaholt suffered vision problems and required treatment. As
a result of either the Avastin injection or the injections to treat the
infection, she suffered a haemorrhage, which temporarily reduced her vision. As
another result of the treatment, she suffered a detached retina, which required
surgery. As a result of the surgery, she suffered superonasal peripheral and
far-peripheral vision loss. That loss does not affect her fine detail and
colour vision, and may not have been a sufficient field loss to impair her
ability to drive.

[214]     Ms. Glaholt
has also suffered central vision loss, which affects her ability to see fine
detail and colour. On the balance of probabilities, this vision loss arose from
her condition of wet MD, rather than as a result of the endophthalmitis or the
treatment for it or for the detached retina.

[215]     Ms. Glaholt
did not intend to consent to the Avastin injection. However, Dr. Ross
reasonably believed that she had indicated her consent to that injection. As a
result, her claim for medical battery is dismissed. Dr. Ross’s treatment
of Ms. Glaholt did not fall below the standard of care of a retinal
specialist in treating Ms. Glaholt. As a result, Ms. Glaholt’s claim
for medical negligence against Dr. Ross is dismissed.

[216]     Dr. Fitterman
did not tell Ms. Glaholt that Dr. Ross might suggest that she receive
an Avastin injection. With the benefit of hindsight, it probably would have
been better if Ms. Glaholt had known before she saw Dr. Ross that he
might suggest treating her with an injection into her eye. However, Dr. Fitterman
did not fall below the standard of care owed by a general ophthalmologist in
making a referral to a retinal specialist. As a result, Ms. Glaholt’s
claim for medical negligence against Dr. Fitterman is dismissed.

[217]    
In summary, Ms. Glaholt’s claims against all defendants must be
dismissed. If the parties are unable to agree on costs, they should arrange a
hearing before me through the registry.

“Madam Justice Gray”