IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131002

Docket: S102055

Registry:
Vancouver

Between:

John Thomas Maher

Plaintiff

And

Hugo F.S. Sutton,
Dr. Hugo Sutton Eyecare Inc., IRIS Ophthalmology Clinic Inc., IRIS The Visual
Group Western Canada Inc., ABC Company #1, ABC Company #2, John Doe

Defendants

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

Introduction

[1]            
The plaintiff John Maher seeks damages for loss and injury that he
alleges he suffered as a result of having corrective laser eye surgery on March
27, 2008. Mr. Maher alleges that the defendants were negligent in in their
treatment of him and that the defendants proceeded with the surgery without his
informed consent. Mr. Maher also seeks punitive damages against the
defendant Dr. Hugo Sutton for wilfully undertaking the surgery for which Mr.
Maher was not a suitable candidate and for failing to provide proper follow-up
care for complications that arose as a result of the surgery.

[2]            
Mr. Maher was born
on March 13, 1958. He is a successful businessman who is the majority
shareholder of a group of companies that operate under the trade name Duraseal.
The principal operating company of the group is Duraseal Ltd. Both before and
after the surgery Mr. Maher played a key role in the operation of the companies.

[3]            
The defendant Dr.
Sutton is an ophthalmologist who performs laser surgery. He is the principal of
the defendant Dr. Hugo Sutton Eyecare Inc. (“Sutton Eyecare”). I will refer to
Dr. Sutton and Sutton Eyecare collectively as the Sutton Defendants.

[4]            
The defendant IRIS
Ophthalmological Clinic Inc. (“IRIS Inc.”) owns the facility in Langley,
British Columbia (the “IRIS Clinic”) in which Dr. Sutton operated on
Mr. Maher. The defendant IRIS The Visual Group Western Canada Inc. (“IRIS
Western”) is a franchisor specializing in eye care services and in the sale of
eye care products throughout Canada. It licensed Sutton Eyecare to operate
under the IRIS trade name. I will refer to IRIS Inc. and IRIS Western
collectively as the IRIS Defendants.

[5]            
The relationship between the IRIS Defendants and the Sutton Defendants
was explored at some length during the trial. Given the conclusions I have
reached on the threshold questions of medical negligence and lack of informed
consent, it is unnecessary to review the evidence about that relationship in
detail.  An agreement in writing dated January 1, 2008 sets out the
relationship. By the terms of that agreement, IRIS Clinic provided the
facilities and equipment to permit Sutton Eyecare to operate a non-hospital
medical surgical facility to provide laser eye surgery and related activities
to patients. The agreement requires Sutton Eyecare to provide the services of
Dr. Sutton as medical director of the surgical facility. The IRIS Defendants say
they played no role in the provision of surgical services to Mr. Maher but
merely provided the facilities in which those services were performed. Their
position is that any claim put forward by Mr. Maher lies properly only against
the Sutton Defendants.

Background

[6]            
Mr. Maher suffers
from a condition known as amblyopia, or lazy eye. His right eye does not focus
properly. Despite childhood treatment to attempt to correct this condition Mr.
Maher’s best corrected vision in his right eye is limited to 20/60. He is largely
dependant on his left eye for both near and far vision. Despite this, Mr. Maher
is able to function at a high level. He is an accomplished amateur golfer. His
responsibilities at Duraseal including examining detailed specifications to
prepare bids for prospective contracts for Duraseal. There is no doubt that
Duraseal has been built up and sustained largely through Mr. Maher’s efforts.

[7]            
As Mr. Maher aged
he began to experience normal deterioration of his vision associated with aging
in his left eye. In May 2003 he underwent laser eye surgery on both eyes
performed by Dr. David Lin. Mr. Maher was pleased with the results of this
surgery. By 2006 however Mr. Maher’s vision had regressed and he again
began to investigate measures to improve his vision. In December 2006 he was
examined by Dr. Margo Clarke, an ophthalmologist practising in Langley. Dr. Clarke
diagnosed hyperopic astigmatism and presbyopia in Mr. Maher’s left eye. She
measured Mr. Maher’s best corrected vision at 20/20 in his left eye, 20/60-2 in
his right eye and noted that Mr. Maher would decide whether to return to Dr.
Lin for a touch up laser treatment. She also gave Mr. Maher a prescription for
corrective lenses. In 2007, Mr. Maher attended at the IRIS Clinic twice and on
each visit was supplied with contact lenses.

[8]            
In 2008, Mr. Maher
went to Germany to have a knee joint surgically replaced. After his return he
again began to investigate having further laser surgery to address the
deterioration in his uncorrected vision in his left eye. Mr. Maher testified
that after he returned from Germany he was having difficulty getting down to
read his putts while playing golf. He did not return to Dr. Lin for the surgery
but instead went to the IRIS Clinic.

[9]            
The evidence with
respect to Mr. Maher’s dealings with persons at the IRIS Clinic is somewhat
contradictory. In particular, there is a conflict in the evidence on the
question of whether Mr. Maher was initially rejected as a candidate for surgery
because of his amblyopia and over whether Mr. Maher was told that he was not a
candidate for surgery.

[10]        
Apart from
receptionists, Mr. Maher had direct contact with three people at the IRIS
Clinic, Dr. Eric Pharand, Mona Mah and the defendant Dr. Hugo Sutton, with
respect to his surgery. Dr. Pharand is an optometrist who provides optometric
services to Sutton Eyecare. Mona Mah is an optician who was employed by Sutton
Eyecare as a patient counsellor.

[11]        
On March 12, 2008,
Mr. Maher underwent a series of tests conducted primarily by Dr. Pharand as part
of a pre-operative evaluation. Dr. Pharand recalls that Dr. Sutton did
drop in on the testing from time to time. Mr. Maher testified that at the
end of a day of testing, Dr. Pharand told him he was not a candidate for laser
surgery because of the risks involved and the fact that his other eye was
“legally blind”. Mr. Maher says he then left the IRIS Clinic and returned home
with his wife.

[12]        
Dr. Pharand’s
recollection of what he said to Mr. Maher differs from that of Mr. Maher. Dr.
Pharand stated that he did not tell Mr. Maher he was not a candidate for
surgery during the pre-operative evaluation. His evidence was that he warned
Mr. Maher about the risks of doing surgery on the good eye of someone who
is monocular. I have no doubt that Dr. Pharand considered Mr. Maher to be
functionally monocular, as a note he made in his evaluation report indicates.

[13]        
Dr. Pharand
testified that the decision as to whether a patient was a candidate for surgery
was not his to make. I therefore think it unlikely that he would have made such
a statement to Mr. Maher. In addition, I think that Dr. Pharand would have
recorded such an unequivocal statement had he made it. Finally, I think it
unlikely that Dr. Pharand would have characterized Mr. Maher as being legally
blind in his right eye given that he did not meet the criteria for such a
characterization. I therefore prefer Dr. Pharand’s evidence about what he
said to Mr. Maher to that of Mr. Maher.

[14]        
I have not
overlooked Dr. Sutton’s evidence that Mr. Maher had been told that he was not a
candidate for surgery. However, it is quite clear from the answers he gave on
this question that he had no personal knowledge of what Dr. Pharand said to Mr.
Maher regarding being told he was not a candidate for surgery. His evidence in
chief on this point is as follows:

 5     Q    Now, was the
plaintiff originally rejected?

 6     A    I believe so, yes. To
the best of my

 7          recollection.

 8     Q    And do you recall
why, or is there any indication

 9          why he was
originally rejected?

 10     A    I believe he was
rejected because he’s outside —

 11          he was outside
guidelines for doing laser

 12          refractive surgery,
at least primary procedures,

 13          on virgin eyes. And
the other concern was that

 14          he had had his
treatment done at another centre,

 15          and the usual
practice would be to ask him to

 16          be — to go back to
the other centre to have an

 17          enhancement
procedure. It’s not usual to do

 18          enhancement
procedures from other surgeons in our

 19          clinic.

 20     Q    Okay. Now, you said
he’s outside the guidelines.

 21          What did you mean
by that?

 22     A    Well, the
guidelines, just that he had a lazy, an

 23          amblyopic right eye
that had best vision of 20/50

 24          as opposed to being
20/40, which is the usual

 25          guideline.

 26     Q    So is that a
decision — that initial rejection,

 27          would that have
been a decision of yours?

  
28     A    I do not recall. And quite probably not.

[15]        
Later in his evidence Dr. Sutton testified that he became aware that
Mr. Maher had been rejected and that Mr. Maher had asked for a
reconsideration. His evidence is as follows:

 8     A    It’s a separate committee.

 9     Q    But did — well, we know that the
surgery

 10          ultimately went ahead?

 11     A    Yes.

 12     Q    Do you know, if the plaintiff was
initially

 13          rejected, what happened that cause
it to go

 14          ahead?

 15     A    Well, my memory is that the patient
was anxious

 16          to go ahead with the surgery and
asked myself

 17          and/or the committee to reconsider
his situation

 18          and to see if we would, in fact, be
able to —

 19          willing to consider the surgery, and
that’s what

 20          we went ahead and discussed. And the
committee

 21          and my recommendation eventually
decided that we

 22          would do the surgery on this
patient.

 23     Q    And were there any specific factors
that made up

 24          that decision?  Or led to that
decision?

 25     A    Well, first of all, I was satisfied
that he had

 26          had an excellent prior surgery
without any

 27          qualifications to the original
surgery. In

 28          addition to that, that an
enhancement procedure

 29          is significantly less
catastrophically risky than

 30          a primary procedure. And also that
the patient

 31          had been through the process of
being rejected

 32          and therefore fully understood the
thought

 33          processes in the minds of both the
staff, the

 34          optometrists and myself prior to
taking surgery

 35          himself,
and being fully informed on the issues.

[16]        
I have concluded that Dr. Sutton was reconstructing events when he gave
this evidence. There is no notation in the IRIS Clinic file indicating that Mr.
Maher had originally been rejected as a candidate for surgery. Dr. Pharand and
Mona Mah deny telling Mr. Maher that he was not a candidate. In addition there
is nothing in the IRIS Clinic files to contradict Mr. Maher’s evidence that he had
no communications with the IRIS Clinic and did not ask for a reconsideration of
his case between his pre-evaluation on March 12, 2008 and being notified that
his surgery could proceed.

[17]        
After the pre-operative
evaluation, Mr. Maher’s case was the subject of an enhancement review by an
enhancement review committee consisting of Dr. Pharand, Dr. Francis Jean,
the principal of the IRIS Defendants and Mona Mah.

[18]        
There is also some
confusion in the evidence about the role the enhancement review committee
played in this case. In his evidence, Dr. Sutton agreed that the enhancement review
committee reconsidered an initial rejection of Mr. Maher as a candidate for
surgery. However, I am satisfied that the purpose of the enhancement review was
to review all cases of retreatment or enhancement and that Mr. Maher’s file was
reviewed by that committee for that reason and not because he had previously
been ruled out as a candidate for surgery.

[19]        
There is no
evidence that Dr. Pharand told the other members of the committee that he did
not consider Mr. Maher to be a candidate for surgery. The evidence is that all
members of the committee signed the enhancement review form, indicating that in
their view Mr. Maher was a candidate for retreatment.

[20]        
I find that Dr.
Sutton was also speculating or reconstructing when he gave evidence as to why
Mr. Maher was initially rejected as a candidate for surgery and why that
rejection was reconsidered. In particular, there was no evidence from anyone
else that the fact that Mr. Maher had had previous surgery from Dr. Lin was
ever considered to be a reason for rejecting him as a candidate.

[21]        
It is also
difficult to reconcile the evidence of Dr. Sutton with that of Mr. Maher. While
Mr. Maher does say he was told he was not a candidate, he denies that he made
any further contact with the IRIS Clinic to attempt to have his case reconsidered.
Dr. Sutton’s evidence that Mr. Maher was initially rejected is consistent
with Mr. Maher’s but is inconsistent with that of Dr. Pharand. Dr.
Sutton’s evidence that Mr. Maher sought a reconsideration is contrary to
Mr. Maher’s recollection, and unsupported by any other witness.

[22]        
In assessing the conflicting evidence in this case I have found useful
guidance in the well-known judgment of O’Halloran J.A. in Farnya v. Chorny,
[1951] 2 D.L.R 354 at 356 -357:

The credibility of interested
witness, particularly in cases of conflict of evidence, cannot be gauged solely
by the test of whether the personal demeanour of the particular witness carried
conviction of the truth. The test must reasonably subject his story to an
examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions. Only thus can a Court
satisfactorily appraise the testimony of quick-minded, experienced and
confident witnesses, and of those shrewd persons adept in the half-lie and of
long and successful experience in combining skilful exaggeration with partial
suppression of the truth. Again a witness may testify what he sincerely
believes to be true, but he may be quite honestly mistaken. For a trial Judge
to say "I believe him because I judge him to be telling the truth",
is to come to a conclusion on consideration of only half the problem. In truth
it may easily be self-direction of a dangerous kind.

[23]        
In this case the evidence of Mona Mah and Dr. Pharand does not suggest
that Mr. Maher was initially rejected as a candidate for surgery, that he was
ever told that he was not a candidate for surgery or that the enhancement
review committee reversed an earlier decision to reject Mr. Maher as a
candidate. Equally importantly there is nothing in the files of the IRIS Clinic
to support the conclusion that any such thing happened.

[24]        
I have dealt with
the question of what Mr. Maher was told about his candidacy for surgery at some
length because in their submissions counsel for both Mr. Maher and the Sutton
Defendants accepted that Mr. Maher was told at some point that he was not a
candidate for laser surgery because of his amblyopia, and that decision was
revisited by the enhancement review committee. I must however give effect to
the evidence that I accept as reliable.

[25]        
In the result I
conclude that Mr. Maher was never told he was not a candidate for surgery, but
was advised that the consequences of complications from the surgery would be
much greater for him than for patients with two functioning eyes. However, I
accept Mr. Maher’s evidence that he had no further communications with the IRIS
Clinic before Dr. Sutton called to inform him that the surgery could proceed. I
do not accept Dr. Sutton’s evidence that he initiated the review committee’s
consideration of Mr. Maher’s case or that the review committee somehow reversed
an earlier decision to reject Mr. Maher as a candidate for the surgery.

[26]        
I do accept that
sometime after the pre-operative evaluation Dr. Sutton telephoned Mr. Maher to
tell him that the surgery could proceed. I also accept Mr. Maher’s
evidence that Dr. Sutton was very positive about the prospects for success of
the surgery.

[27]        
On March 27, 2008
Mr. Maher went to the IRIS Clinic for his laser enhancement surgery. The
procedure involved lifting the existing flap in the cornea of his left eye created
in the 2003 surgery, the application of a laser to reshape the cornea and the
repositioning of the flap. Because this was an enhancement of a previous
surgery it was not necessary to make any new cut in the cornea.

[28]        
Before the surgery,
Mr. Maher executed a Patient Consent Form (the “Consent Form”). Paragraphs 9
and 10 provide as follows:

9. I understand that after the
Procedure I may experience side effects such as pain, discomfort and
scratchiness, halos, blurry vision or fluctuations in vision, which may be
temporary or could be permanent. I have been advised that I may find some of
these side effects difficult to tolerate.

10. I understand that there are
numerous risks and complications, both known and unknown connected with the
Procedure, including but not limited to infection, hemorrhage, delayed healing,
under or over correction, and other risks and complications that could affect
my vision and my general health on a temporary or permanent basis, and could
require additional surgery, including, but not limited to, re-treatment or a
cornea transplant. Those risks also include, but are not limited to partial or
total blindness, loss of a cornea, retinal damage or loss of an eye.

[29]        
Mona Mah testified that she went through the Consent Form page by page
with Mr. Maher and his wife and answered any questions they had about it. She
had Mr. Maher initial each page of the form. Mr. Maher’s evidence was that
he had questions but that Ms. Mah’s standard answer to questions was that Dr.
Sutton had performed 45,000 of these procedures and that it was just a form
that had to be signed. Mr. Maher also testified that Dr. Pharand at one point
came in to clarify a few issues. Mr. Maher’s wife Christine gave substantially
the same evidence.

[30]        
Mr. Maher’s evidence on this point is set out in the transcript of June
7, 2013 as follows:

  12     Q    This is a
patient consent form for LASIK and PRK.

 13               If you turn to
page 46 and the first

 14          paragraph of the
consent form, that’s your

 15          signature?

 16     A    Yes.

 17     Q    Do you recall
filling out this document?

 18     A    Yes.

 19     Q    Can you tell me
what you recall about filling out

 20          this document?

 21     A    Okay.  My wife was
with me.  We were in the

 22          waiting room.  I
had many specific questions with

 23          regard to this.  I
was reluctant to sign it.  And

 24          I had questions
about it.  And on many occasions

 25          those questions
were fielded by Mona Mah, and at

 26          one point Dr.
Pharand came to clarify a few

 27          issues.  I was
assured that this is just a

 28          procedure and, you
know, when you consider 45,000

 29          successful
surgeries there is really not too much

  
30          to worry about.

[31]        
After signing the Consent Form, Mr. Maher underwent the surgery. He does
not allege that the surgery was carried out negligently or that his complaints
are attributable to any failure to meet the standard of care required of a
surgeon performing the surgery.

[32]        
Mr. Maher experienced discomfort beginning the same day as the surgery. His
principal complaints were dryness and irritation in the left eye, fluctuating
vision in that eye as well as some pain and discomfort. He returned to the IRIS
Clinic the next morning.  Dr. Sutton prescribed eye drops and suggested that
Mr. Maher use temporary corrective lenses until his eye stabilized. He saw Mr.
Maher that day and on a number of occasions after that up to August 1, 2008.

[33]        
In the course of his examinations Dr. Sutton observed some epithelial
ingrowth, which at first was rated as minimal, then increased somewhat. The
epithelial ingrowth was not on the visual axis and did not impair Mr. Maher’s
vision in any way. Dr. Sutton did not tell Mr. Maher about the epithelial
ingrowth because he did not think it required treatment. He did however
continue to monitor it up to the date of his last examination of Mr. Maher on
August 1, 2008.

[34]        
Between March 28 and May 2, 2008 Dr. Sutton examined Mr. Maher five times.
He first recorded epithelial ingrowth at ½ on the examination on May 2, 2008. According
to the IRIS Clinic’s records the next examination after May 2 occurred on
August 1, 2008. On that date Dr. Sutton recorded the ingrowth at 1.

[35]        
Throughout the period up to the end of August Mr. Maher continued to
experience dryness and irritation in his left eye as well as periods of blurry
vision.

[36]        
In August 2008, Mr. Maher withdrew from Dr. Sutton’s care and consulted
Dr. William Hancock, an ophthalmologist who was then practising in
Washington State. Dr. Hancock first examined Mr. Maher on September 4, 2008. At
that time Mr. Maher continued to experience pain and discomfort in his
left eye. In addition he complained of blurry vision at distance. Dr. Hancock
noted two areas of epithelial ingrowth on Mr. Maher’s left eye. In the
examination, Mr. Maher was able to see 20/20 at distance in the left eye with
the assistance of corrective lenses. Dr. Hancock prescribed Restasis drops
and arranged for a more complete examination in his Seattle office on September
11, 2008.

[37]        
On September 11, Mr. Maher continued to complain about unstable myopia
in his left eye. At that time Mr. Maher’s complaints remained the same and the
epithelial growth appeared to be stable. At some point Dr. Hancock informed
Mr. Maher about the epithelial ingrowth and discussed the possibility of a
further laser procedure to excise the ingrowth. He advised Mr. Maher to
continue to use Restasis.

[38]        
Dr. Hancock treated Mr. Maher until the end of 2008. At that time he
retired from practice and referred Mr. Maher to Dr. Simon Holland in Vancouver.
Dr. Holland has continued to treat Mr. Maher. His last recorded consultation
with Mr. Maher was October 15, 2012.

[39]        
Dr. Holland continued to monitor Mr. Maher and prescribe drops and gel
to address his dry eye complaints. To deal with Mr. Maher’s fluctuating vision,
which he attributed to unstable tear flow, Dr. Holland inserted a series
of punctal plugs in one of Mr. Maher’s tear drains. Despite inserting
progressively larger plugs in the drain they all failed to remain in place. In
2010 Dr. Holland referred Mr. Maher to Dr. Dolman, who cauterized the
drain. According to Mr. Maher, the cauterization resulted in a significant
improvement in his dry eye complaints.

[40]        
In July 2010, Dr. Holland reported that there had been improvement in
Mr. Maher’s condition in the time he was treating him. Although Mr.
Maher’s vision continued to fluctuate his uncorrected visual acuity in his left
eye was 20/25, improved to 20/20 with the use of corrective lenses.

[41]        
At present Mr. Maher’s principal complaints are that he fatigues easily
when doing detailed work and has difficulty with night vision while driving. He
also stated that his vision continues to fluctuate. He now has several pairs of
glasses with different prescriptions that he can choose from on a day to day
basis. In addition he has had numerous prescription changes. As indicated
above, his dry eye symptoms have significantly improved. At trial he stated
that he usually needs to get up only once a night to put drops in his eyes.

[42]        
The consensus of the medical evidence before me is that Mr. Maher
suffers from dry eye syndrome and that his fluctuating visual acuity is
attributable to variable tear flow. I am satisfied on the evidence before me
that these conditions are a result of the laser treatment undergone on March
27, 2008. Both Dr. Fromer and Dr. Goldberg agree that dry eye syndrome is
a recognized complication of laser surgery. Dr. Holland, although not qualified
as an expert in this case, did testify that he observed dry spots on the left
eye during his examinations of Mr. Maher.

[43]        
Dr. Goldberg’s evidence was that it is thought that the disruption of
tear flow is attributable to the severing of nerves when cutting the flap to
expose the lens of the eye. The enhancement procedure Dr. Sutton performed did
not involve the cutting of any such nerves because Dr. Sutton lifted the
existing flap previously cut by Dr. Lin. However, there is no evidence that Mr.
Maher suffered from persistent dry eye prior to the surgery performed by Dr.
Sutton. Dr. Fromer does not limit the cause of dry eye to the severing of
nerves.

[44]        
I base my finding that the difficulties experienced by Mr. Maher are
attributable to the surgery on a common sense view of the evidence. Mr. Maher
did not experience the symptoms prior to the surgery. His symptoms are
recognized complications of laser eye surgery. In Clements v. Clements,
2012 SCC 32, the Court stated as follows:

9     The "but for"
causation test must be applied in a robust common sense fashion. There is no
need for scientific evidence of the precise contribution the defendant’s
negligence made to the injury. See Wilsher v. Essex Area Health Authority,
[1988] A.C. 1074, at p. 1090, per Lord Bridge; Snell v. Farrell, [1990]
2 S.C.R. 311.

10     A common sense
inference of "but for" causation from proof of negligence usually
flows without difficulty. Evidence connecting the breach of duty to the injury
suffered may permit the judge, depending on the circumstances, to infer that
the defendant’s negligence probably caused the loss. See Snell and Athey
v. Leonati, [1996] 3 S.C.R. 458. See also the discussion on this issue by
the Australian courts: Betts v. Whittingslowe, [1945] HCA 31, 71 C.L.R.
637, at p. 649; Bennett v. Minister of Community Welfare, [1992] HCA 27,
176 C.L.R. 408, at pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49
M.V.R. 53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245
A.L.R. 653, at paras. 137-44.

[45]        
The above quotation addressed the issue of causation once negligence has
been established. In this case no negligence in the performance of the surgery
itself is alleged. However, I conclude that the same principles apply in
determining causation in cases involving alleged lack of informed consent. In
such cases the Court should apply the “but for” test for causation in a robust
and common sense fashion to determine whether the surgery caused the injuries
complained of. In this case I conclude that the plaintiff has established that
the symptoms he complains of were caused by the enhancement procedure performed
by Dr. Sutton.

The Plaintiff’s Claims

[46]        
Mr. Maher’s counsel particularized his case as follows:

1)    that Dr. Sutton
should not have proceeded with laser surgery on Mr. Maher’s left eye at all in
view of the fact that he was largely dependent on that eye for vision as a
result of his amblyopic right eye;

2)    that it was
negligent to proceed with the surgery in all the circumstances, including the
fact that Mr. Maher had unrealistic expectations about the potential benefits, and
that the risks of the surgery outweighed any realistically achievable benefits;

3)    that Dr. Sutton
fell below the standard of care in his post-surgical care of Mr. Maher to such
an extent as to warrant an award of punitive damages; and

4)    that Dr. Sutton
proceeded with the surgery without obtaining Mr. Maher’s informed consent.

Was it Negligent to Operate on an Amblyopic
Patient?

[47]        
To establish liability on the basis that the surgery should not have
been undertaken at all Mr. Maher must prove that in proceeding with the surgery
Dr. Sutton failed to act in accordance with the conduct of a prudent and
diligent specialist who possesses a reasonable level of knowledge, competence
and skill expected of professionals in that field. In Ter Neuzen v. Korn,
[1995] 3 S.C.R. 674, 11 B.C.L.R. (3d) 201 at para. 33, Sopinka J. restated
this test as follows:

33   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 p. 817, Lapointe v. Hôpital Le Gardeur,
[1992] 1 S.C.R. 351, at p. 361, and McCormick v. Marcotte, [1972] S.C.R.
18.

[48]        
At para. 38 Sopinka J. continued:

38    It is generally accepted that when a doctor acts in
accordance with a recognized and respectable practice of the profession, he or
she will not be found to be negligent. This is because courts do not ordinarily
have the expertise to tell professionals that they are not behaving
appropriately in their field. In a sense, the medical profession as a whole is
assumed to have adopted procedures which are in the best interests of patients
and are not inherently negligent. As L’Heureux-Dubé J. stated in Lapointe,
in the context of the Quebec Civil Code (at pp. 363-64):

Given the number of available
methods of treatment from which medical professionals must at times choose, and
the distinction between error and fault, a doctor will not be found liable if
the diagnosis and treatment given to a patient correspond to those recognized
by medical science at the time, even in the face of competing theories. As
expressed more eloquently by André Nadeau in "La responsabilité
médicale" (1946), 6 R. du B. 153, at p. 155:

[TRANSLATION] The courts do not have jurisdiction to settle scientific
disputes or to choose among divergent opinions of physicians on certain
subjects. They may only make a finding of fault where a violation of
universally accepted rules of medicine has occurred. The courts should not
involve themselves in controversial questions of assessment having to do with
diagnosis or the treatment of preference.

 [Emphasis added in quotation.]

[49]        
In this case Mr. Maher relies on the evidence of Dr. Fromer, an
ophthalmologist practising in New York state, the IRIS Defendants’ own Protocols
and Procedures Manual, and on practice guidelines published by the Canadian
Ophthalmological Society in 2000 to establish that it is not an acceptable
practice to carry out elective laser surgery on a patient who is amblyopic and
therefore effectively dependent on the eye being operated upon for vision.

[50]        
Dr. Fromer’s opinion on this matter was unequivocal. His opinion was
that it is not the standard of care within the medical community to perform
laser corrective surgery on the functioning eye of an amblyopic patient.

[51]        
Mr. Maher also relies on the Protocols and Procedures Manual of the IRIS
Clinic at page 12 as follows:

A small percentage of patients, maybe 5%, have been advised
not to have surgery; this is mainly because they had eye related or medical
conditions that prevented safe treatment.

6. Amblyopia (lazy eye). BSCVA must be 20/40 or
better OD and OS. If 20/40 or better in the amblyopic eye – potential
candidates. Despite the remote risks to the eye in refractive surgery (e.g.:
infection,1:10000), the risks become more significant for patients with
functional vision in only one eye. For this reason, we would typically advise
such patients not to have surgery in their good eye. We could however perform
surgery on the amblyopic eye to reduce anisometropia or remove scarring, for
example.

[Emphasis in original]

[52]        
In addition the Canadian Ophthalmological Society Guidelines published
in 2000 state that amblyopic patients with best corrected acuity of 20/40 in
the amblyopic eye should be excluded as suitable candidates for laser surgery. The
best corrected acuity achieved on any consistent basis for Mr. Maher was 20/60,
although on one occasion an acuity of 20/50 was achieved.

[53]        
Counsel for the defendants objected to the admissibility of Dr. Fromer’s
opinion on the basis that he was not qualified to give evidence on British
Columbia practice because he was not qualified to practice here, nor was he
familiar with the specific standard of practice on this question in British
Columbia.

[54]        
Dr. Fromer is obviously very well qualified to give opinion evidence
with respect to ophthalmological matters, such as causation, that are not specifically
related to the question of standard of care. However, the objection made is to
his qualification to give evidence with respect to the standard of care in
British Columbia. Dr. Fromer has never practiced medicine in Canada and is not
licensed to practice medicine in British Columbia. He has never been a member
of any Canadian medical professional body. Under cross-examination, Dr. Fromer
stated that in his view the universal standard of care throughout the world
precluded performing elective laser surgery on patients with an amblyopic eye. However,
he acknowledged that he had never discussed this question with any physician in
British Columbia.

[55]        
In Chen v. Ross, 2012 BCSC 1605 [Chen], Ballance J.
considered the admissibility of opinion evidence with respect to ophthalmology
from an ophthalmologist practising in China. At paras. 50-52 of her reasons,
Ballance J. stated as follows:

[50]
Far fewer cases have addressed the admissibility of the opinion of a
medical expert who was trained and has practised exclusively outside of Canada.
A unified judicial approach has yet to emerge other than to confirm that the
admissibility of the foreign expert’s opinion will turn on the Court’s
assessment of the degree of his or her familiarity and experience with the
nature of the defendant physician’s field and practice.

[51]
In Leaker v. Porter, 2001 BCSC 1074, this Court admitted opinion
evidence of a medical expert from Washington State, but in the end, accorded
little weight to it. (See also Dobie v. Dlin, 2001 BCSC 1523). In
contrast, in Kivisalu v. Brown, 2002 BCSC 1901, the court refused to
admit the evidence of a medical specialist from Arizona on the ground that he
did not have the requisite knowledge or experience to informatively speak to
the medical standard of a general practitioner in British Columbia. Likewise in
Tiglao v. Sleightholm, 2012 ONSC 3092, the court ruled that opinion
evidence from a medical expert from New York who had never practised in Ontario
was not admissible.

[52] My reading of the authorities
overall indicates that serious deficiencies in the depth of the proffered
expert’s experience and familiarity with the defendant physician’s medical
field and practice is likely to affect the admissibility of the opinion
evidence, while lesser flaws are more apt to negatively affect the weight given
to that evidence once it has been admitted.

[56]        
In this case I am concerned that Dr. Fromer neither consulted any
British Columbia practitioner with respect to standards of practice in British
Columbia, nor made any effort to consult any published standards of practice
approved by professional bodies in British Columbia or Canada. As was pointed
out in Chen, a judge is required to act as a gate keeper with respect to
the admissibility of evidence. Opinion evidence is of course inadmissible
unless the person tendering it establishes the qualifications of the person
giving the evidence to give the opinion.

[57]        
In this case the plaintiff did not tender any evidence to show that Dr.
Fromer was familiar with the standard of practice in British Columbia or that
the standard of practice in British Columbia was similar to that in New York.
The dispositive question on the issue of standard of practice is whether Dr.
Sutton acted in accordance with the standard of practice applicable in British
Columbia. I conclude that the plaintiff has not established that Dr. Fromer is
qualified to give opinion evidence on that point. In this regard I note that
the plaintiff did tender opinion evidence from Dr. Suren Sanmugasunderam, an
ophthalmologist practising in British Columbia. Dr. Sanmugasunderam gave an
opinion that the standard of care in British Columbia would have been to
disclose and discuss the specific risks to visual function associated with the
decreased vision in the amblyopic eye when undertaking surgery on the other eye.
This opinion does not support the opinion of Dr. Fromer that there is one
universal standard in the world wide medical community that such a surgery
should not be performed.

[58]        
Accordingly I rule that those portions of Dr. Fromer’s report that give
opinion evidence on the question of the standard of practice in British
Columbia are inadmissible.

[59]        
Without Dr. Fromer’s opinion, there is no evidentiary basis to support a
finding that Dr. Sutton did not meet the standard of care of an ophthalmologist
carrying out corrective laser surgery in British Columbia on Mr. Maher because
Mr. Maher had amblyopia. The admissible evidence is to the contrary. Besides
the inference to be drawn from Dr. Sanmugasunderam’s report, I also note that
Dr. Lin performed such a surgery on Mr. Maher in 2003 and that in 2003 and that
Dr. Clarke advised him that he consider a “touch up” or enhancement when he
consulted her in 2006.

[60]        
In addition, Dr. Aaron Goldberg, a defence expert gave essentially the
same opinion on this point as was given by Dr. Sanmugasunderam.

[61]        
I have not overlooked the contents of the IRIS Protocols and Procedure
Manual or the contents of the Canadian Ophthalmological Society Guidelines
referred to earlier in these reasons. However there was no expert evidence led
to support the conclusion that the guidelines set out the required standard of
practice on this question or that the Policies and Procedure Manual was based
on such a practice.

[62]        
Mr. Maher had the burden of proving that these documents set out the
required standard of care for specialist ophthalmologists practicing in British
Columbia. He led no admissible evidence to support that conclusion.

[63]        
In Holan Estate v. Stanton Regional Health Board, 2001
NWTSC 26 at paras. 61-64 Vertes J. considered the use of guidelines as evidence
of a standard of practice as follows:

61 While, in my view, breach of a hospital policy does
not amount to prima facie negligence, the policy could nonetheless be a factor
to consider in determining what is the requisite standard of care and whether
there has been a failure to meet it. This is no different than the general law
with respect to the civil implications of a statutory violation.

62 In Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R.
205, the Supreme Court of Canada held that mere breach of a statute does not
itself give rise to civil liability. It may, however, be an element of
negligence. The civil consequences of a breach of statute are subsumed in the
law of negligence although the statute may be examined to see if it sets up a
useful standard of reasonable care. Since that is the application of a statute
breach in the tort context, I fail to see how a policy breach could lead to
more strict consequences.

63 The requirements of a policy, such as the hospital
polices in this case, are indicia of what the standard of care may be but they
are not determinative of it. That is also the conclusion of the few cases on
this point referred to by counsel: Levesque v. Health Sciences Centre (1996),
108 Man.R. (2d) 145 (Q.B.), affirmed on appeal (1997), 115 Man.R (2d) 228
(C.A.); Croutch v. B.C. Women’s Hospital & Health Centre, [2001] B.C.J. No.
1430 (S.C.). Even the case referred to by plaintiff’s counsel supports this
conclusion: DeJong v. Owen Sound General Hospital, [1996] O.J. No. 809
(Gen.Div.), affirmed on appeal, [1999] O.J. No. 4369. There the trial judge
noted the failure to follow certain policies as part of several factors leading
to the finding of negligence. However, the trial judge also noted that a policy
is not mandatory even though it may set out relevant considerations.

[64]        
In this case the Iris Clinic Protocols and Procedures state that the
clinic would typically advise patients with amblyopia not to have surgery on
their good eye. The Protocols and Procedures do not state that such patients
should never have laser surgery. In addition Dr. Goldberg’s evidence was that
the guidelines of the Canadian Ophthalmological Society are not mandatory and do
not determine the standard of practice. Considering these documents in the
context of the evidence in this case, including the fact that no Canadian
doctor gave evidence that amblyopia alone should preclude laser corrective
surgery, I find that neither document establishes a standard of care.

[65]        
Accordingly, I find that Mr. Maher has failed to establish negligence on
the part of the defendants arising out of the decision to proceed with the
surgery on a patient with amblyopia.

Was it Negligent to Perform Surgery
Because Risks Outweighed Benefits?

[66]        
The second allegation of negligence described in para. 46 of these
reasons seems to be an elaboration of the first. Mr. Maher says that Dr. Sutton
did not meet the required standard of practice because he proceeded with the surgery
in circumstances in which the potential benefits did not warrant the assumption
of the risks of the surgery. The central focus of this ground of negligence is
that Mr. Maher had unrealistic expectations about the benefits of the surgery
and that he should not have been exposed to its risks given the likelihood that
the desired benefits could not be achieved.

[67]        
Mr. Maher’s counsel submits that a person with unrealistic expectations
about the benefits of the surgery should be excluded as a candidate for that
surgery. She submits that Mr. Maher had unrealistic expectations because he
wanted to achieve 20/20 uncorrected vision in his good eye so that he could
play golf without wearing corrective lenses. It is argued that Dr. Sutton did
not attempt to achieve 20/20 vision in the left eye but instead overcorrected
the eye on the hope it would regress back to 20/20.

[68]        
As I understand this argument, it is that Dr. Sutton ought to have known
that it was unrealistic for Mr. Maher to expect to have his vision restored to
what it was immediately after his prior lasik procedure and that he failed to
meet an acceptable standard of practice in carrying out the procedure with its
attendant risks in light of that knowledge.

[69]        
I do not accept this submission. There is no evidence before me that
Mr. Maher’s goal of being able to play golf without corrective lenses was
unachievable. Further the evidence is that the technique of overcorrecting with
the expectation that the eye will revert to 20/20 is an acceptable practice.

[70]        
The evidence relied upon by the plaintiff in support of this allegation
of negligence is general and not directed to the specifics of this case. The
evidence of Dr. Sanmugasunderam referred to in the plaintiff’s argument
did not address whether Dr. Sutton’s decision to proceed with the surgery in
this case did not meet an acceptable standard of practice because Mr. Maher had
unrealistic expectations. In the absence of such expert evidence I am unable to
conclude that the decision to proceed with the surgery in the light of Mr.
Maher’s expectations fell below an acceptable level of practice.

Post-Operative Care

[71]        
Mr. Maher’s third claim is that Dr. Sutton, in post-operative care, made
conscious choices against the best practices of a physician. Counsel
particularized the deficiencies in post-operative care as: not charting Mr.
Maher’s complaints immediately post‑operation; choosing not to tell Mr.
Maher that he had epithelial ingrowth; failing to advise Mr. Maher that he
needed regular monitoring of the epithelial ingrowth; and  failing to report
the complications to the College of Physicians and Surgeons

[72]        
I have no difficulty in rejecting these submissions. There is no evidence
that Dr. Sutton fell below an acceptable level of practice in his
post-operative care of Mr. Maher. He observed and monitored the epithelial
ingrowth until Mr. Maher made a decision to change physicians. There is no
evidence that the epithelial ingrowth required any treatment and none of the
ophthalmologists who subsequently treated Mr. Maher performed any treatment in
respect of it. As of August 1, 2008, Dr. Sutton had no reason to believe that
Mr. Maher would not continue in his care. Given this fact and the fact that Dr.
Sutton was monitoring the epithelial ingrowth, I see no basis for any criticism
in that regard. Finally, any failure on the part of Dr. Sutton to report
complications from the surgery to the College, even assuming he was obligated to
do so in this case, cannot form the basis for any claim by Mr. Maher.

[73]        
Accordingly, I conclude that there is no merit in the claim relating to
post‑operative care. As this claim is the basis for the claim for
punitive and exemplary damages, that claim must also fail.

Informed Consent

[74]        
Finally, Mr. Maher submits that the surgery proceeded without his
informed consent and the defendants are therefore liable for the damages he
suffered as a result of the surgery.

[75]        
Counsel agree on the principles governing a claim based on a lack of
informed consent. To succeed, Mr. Maher must establish:

1.     That
material risks were not disclosed to him prior to the surgery

2.     That a
reasonable person in his position would not have proceeded as he did if he had
been advised of those risks

3.     That the
risk that was not disclosed materialized and caused the injuries from which he
now suffers.

[76]        
In Diack v. Bardsley (1983), 46 B.C.L.R. 240, McEachern C.J.
succinctly set out the duty of a physician to disclose the risks of a surgery
to a patient as follows at 245:

The present state of the law was stated and re-stated in Hopp
v. Lepp (1980), 112 D.L.R. (3d) 67 (S.C.C.), and Reibl v. Hughes (1980),
114 D.L.R. (3d) 1 (S.C.C.). In the former case, at p. 81, Laskin C.J.C.,
speaking for the Court, said:

 In summary, the decided cases
appear to indicate that, in obtaining the consent of a patient for the
performance upon him of a surgical operation, a surgeon, generally, should
answer any specific questions posed by the patient as to the risks involved and
should, without being questioned, disclose to him the nature of the proposed
operation, its gravity, any material risks and any special or unusual risks
attendant upon the performance of the operation. However, having said that, it
should be added that the scope of the duty of disclosure and whether or not it
has been breached are matters which must be decided in relation to the
circumstances of each particular case."

[77]        
The first question is whether material risks of adverse consequences
from having the surgery were disclosed to Mr. Maher prior to the surgery. I
find that there were material risks of having the surgery even if the surgery
was performed without negligence. These risks included dry eye, unstable tear
flow with associated fluctuating visual acuity and epithelial ingrowth. I am
satisfied that the possibility of any of these risks materializing was
sufficiently high that Mr. Maher ought to have been informed of them. The first
issue is whether Mr. Maher was informed of them.

[78]        
I am unable to find that Dr. Sutton had any substantial discussion with
Mr. Maher about the risks of the surgery. Dr. Sutton has no specific
recollection of any such discussion. Mr. Maher denies that it occurred. As I
have alluded to in these reasons, I found Dr. Sutton to be an unsatisfactory
witness in some respects. In matters involving recollection of events I find
that he had a tendency to reconstruct events of which he had no actual
recollection.

[79]        
I find that Dr. Sutton himself did not discuss the special risks of the
surgery with Mr. Maher. The Consent Form contained a section requiring the
surgeon performing the surgery to certify that he had discussed any special
circumstances with the patient and the additional potential risks posed by
those special circumstances, with a space in which the surgeon was to list
those circumstances. The only notation that Dr. Sutton made in this space was
the word “lasik”, which was the type of laser surgery that was performed on Mr.
Maher. Dr. Sutton did not make a notation of any other special circumstances
and in particular made no notation of the special circumstances relating to Mr.
Maher as an amblyopic patient

[80]        
In this case the Sutton Defendants relied upon the expert evidence of
Dr. Goldberg. Dr. Goldberg agreed with Dr. Sanmugasunderam that a
physician undertaking laser surgery on the functioning eye of a patient with
significantly impaired vision in the other eye must discuss and explain the
special risk associated with the consequences of complications in the
functioning eye. I find that Dr. Sutton made no such disclosure to Mr. Maher.

[81]        
Given this finding of fact, two questions arise. The first is whether
disclosure of material risks of the surgery by someone other than Dr. Sutton is
sufficient to discharge the duty of disclosure. The second is whether such
disclosure was made in this case.

[82]        
I conclude that the Sutton Defendants relied on Dr. Pharand, Mona Mah
and the Consent Form to inform Mr. Maher of the risks of the surgery. I accept
the Sutton Defendants’ submission that information about risks attendant on
surgery need not come directly from the surgeon. It is sufficient that some
responsible person advises the patient of the risks of the surgery: Ferguson
v. Hamilton Civic Hospital (1983), 40 OR (2^nd) 557, and Scott
v. Chapnik, [1998] OJ No. 1305.

[83]        
I am satisfied that Dr. Pharand provided Mr. Maher with sufficient
information about the risks of operating on the properly functioning eye of an
amblyopic patient. His contemporaneous note and oral evidence confirm that he
discussed these risks with Mr. Maher. As I have already indicated, Mr. Maher’s
evidence was that Dr. Pharand told him that he was not a candidate for
surgery because he was “legally blind”  in his other eye. While I did not
accept the specifics of this evidence, it is not inconsistent with him having
been informed of the risks inherent in operating on his functional eye when the
other eye was significantly impaired. I therefore conclude that Mr. Maher was
informed of the risks of the surgery in so far as they pertained to the
consequences of complications to an amblyopic patient.

[84]        
Dr. Pharand also testified that during his preoperative evaluation it
was his standard practice to discuss the risks of the contemplated surgery with
each candidate. The preoperative evaluation form prepared by Dr. Pharand for
his evaluation of Mr. Maher contains a box setting out a number of risks that
are to be discussed with the patient. The risks listed in the box are:

[85]        
Dr. Pharand testified that his standard practice was to discuss each of
these risks with every patient, with particular emphasis on those risks that
might be more prevalent for each particular patient. He also testified that his
practice was to check off the box for each risk that he discussed with the
patient. In this case Dr. Pharand checked off each of the boxes on Mr. Maher’s
pre-operative evaluation.

[86]        
I am satisfied that Dr. Pharand disclosed to Mr. Maher the risks listed
on the pre‑operative evaluation form.

[87]        
Mona Mah was the patient counsellor responsible for reviewing the Consent
Form with Mr. Maher. Her evidence is that she went through everything in the Consent
Form with Mr. Maher. She testified that her standard practice was to go through
each question on the form until she got to the end and to answer any questions
the patient had. If there were questions she could not answer she would ask
either Dr. Pharand or Dr. Sutton to answer them. She stated that she specifically
recalled  following her standard practice with Mr. Maher. As noted above, the Consent
Form contains a listing of possible risks of the surgery at paras. 9-10.

[88]        
Mr. Maher testified that he had a number of concerns about the form and
asked numerous questions. In summary, his evidence was that he was reluctant to
sign the consent, had questions that were answered by Mona Mah and, with respect
to a few issues, Dr. Pharand. He stated that he was assured that the surgery
was just a procedure and that when you consider 45,000 successful surgeries
there was really not too much to worry about. Slightly later in his examination
he said that Mona Mah and Dr. Pharand told him that given the overwhelming
number of successful surgeries and that he was just there for a simple tune-up,
there was just nothing to worry about.

[89]        
This evidence conflicts with that of Dr. Pharand and Mona Mah.

[90]        
I am entitled to take into account evidence of standard practice in
determining what disclosure was made to Mr. Maher. In  Belknap v. Greater
Victoria Hospital Society (1989), 64 D.L.R. 4^th 452, the court
stated as follows:

The defence had a difficult time putting its case. Dr. Meakes
was prevented from saying what he did before the operation. He could not
specifically remember it. That is understandable. Nearly three years elapsed
between the operation and the trial, and two and one-half years elapsed between
the operation and the time the allegation of negligent blood pressure
management was raised. Dr. Meakes said that his "pre-operative assessment
is a very standard part of my practice" and that he could say what had
happened "because this is a habit from which I do not waiver". The
trial judge said that he did not think the evidence was admissible unless the
witness could "remember what he said to Mr. Belknap" and that if the
evidence of Dr. Meakes’s practice from which he did not waiver was admitted it
carried so little weight that it would not much help to me at all".

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.

Wigmore on Evidence, Vol. IA
(Tillers Rev. 1983), states that there is no reason why habit should not be
used as evidence either of negligent action or of careful action (Para. 97),
and that habit should be admissible as a substitute for present recollection.
Phipson on Evidence, 13th ed., para. 9-22, reaches a similar conclusion.

[91]        
I found Mona Mah to be a credible and reliable witness. I do not accept
the evidence of Mr. and Ms. Maher that her answer to most of their questions
was that Dr. Sutton had done 40,000 to 45,000 surgeries and that there was
really nothing to worry about. I find that she answered the questions put to
her to the satisfaction of Mr. Maher. Mr. Maher initialed each page of the
consent form and signed it. He is a successful businessman who is accustomed to
working with detailed technical information. He clearly is not easily
intimidated nor is he reticent about stating his mind. I simply do not accept
that he would have executed the Consent Form without being satisfied that he
understood it and that his questions had been answered to his satisfaction.

[92]        
I therefore conclude that Mr. Maher fully understood and accepted the
contents of the Consent Form. I find that Mona Mah went through the form in
detail with Mr. Maher and either answered his questions to his satisfaction or
had Dr. Pharand answer them. In reaching this conclusion, I accept Mona Mah’s
evidence that she specifically remembers dealing with Mr. Maher and her
evidence as to her standard practice.

[93]        
Mr. Maher’s principal complaints about the effects of the surgery are
dry eye, fluctuating vision, difficulty with night vision and epithelial
ingrowth. His counsel submits that he was not fully advised that there was an
increased risk of dry eye and epithelial ingrowth in a retreatment as compared
to an initial procedure. I am not satisfied that this has been established on
the evidence. However, even assuming that that is the case it appears to me
that adequate disclosure of all of the risks of the surgery actually performed was
made in this case.

[94]        
The Consent Form makes express reference to the risk of discomfort and
scratchiness. Mr. Maher seems to be particularly concerned about fluctuations
in his vision that require him to frequently change his glasses. However,
blurry and fluctuating vision are expressly identified as risks of the surgery
in para. 9 of the Consent Form. In para. 10, the Consent Form clearly refers to
the risk of complications that might require further surgical treatment.

[95]        
I do not accept Mr. Maher’s evidence that he was assured there was
really not too much to worry about. My overall impression of Mr. Maher was that
he had a tendency to hear what he wanted to hear in his dealings with the
defendants. I consider it to be telling that he did not give specific
evidence of the contents of any question he asked of Dr. Pharand or Mona Mah,
and in particular did not testify that he asked for any further explanation of
the risks set out in paras. 9 and 10 of the Consent Form.

[96]        
I accept the submission of Dr. Sutton’s counsel that the physician’s
duty is to disclose the possible injuries that might result from the surgery
but not the mechanism by which those injuries might occur.   In Martin v.
Findlay, 2008 ABCA 161 at paras. 31-34, the principle is stated as
follows:

31 Moreover, the expert evidence on the
standard of care did not suggest that Dr. Findlay use the word
"stroke" in his discussion of risk. Neither expert opined that the
word "stroke" be included. Indeed, neither expert used that word in
describing the material risks of this surgery. Dr. Del Maestro, whose opinion
evidence on the standard was accepted by the trial judge, used the term
"neurological deficit".

32 We note that in Reibl,
the court did not take issue with the surgeon’s description of the risk in that
case which was "paralysis." In Reibl, although the surgeon had
told his patient that the chance of paralysis was greater if he did not undergo
surgery, the surgeon did not inform the patient of his chance of being
paralysed during or shortly after the operation. This was a found to be a
material risk which would have affected the patient’s choice to undergo the
surgery or to defer it to after the vesting of his pension. The entire
discussion of risk in that case involved the term "paralysis."

33 In our view, the trial judge
placed undue emphasis on the use of the word "stroke." The standard
of care did not require that the surgeon disclose the mechanism of the risk.
Mr. Martin was told of the risks of the surgery which could result from a
stroke. These included death, speech impairment and paralysis. He was told of
the risk of the very injuries which occurred.

34 Accordingly,
the trial judge erred in law in concluding that the standard of care required
Dr. Findlay to use the word "stroke" in addition to describing the
risk of paralysis and speech impairment. Dr. Findlay’s disclosure of the risk
met the standard of care.

[97]        
Mr. Maher’s submission is that the defendants did not provide an
adequate explanation of the increased risks of epithelial ingrowth and dry eye
associated with a retreatment procedure as compared to an initial procedure. I
am not sure that such an increased risk has been established. However, even if
such an increased risk exists, in my view the oral disclosure together with the
specific risks listed in the Consent Form did disclose that the procedure that
Mr. Maher was about to undergo had the risks of the injuries of which he
complains in this case.

[98]        
It might have been preferable to have a portion of the Consent Form that
specifically addressed the risks of a retreatment procedure. However, in the
absence of any expert evidence that the applicable standard of care required
different disclosure in the case of a retreatment and of any quantification of
any increased risk, I cannot conclude that the disclosure that was made fell
below an acceptable standard.

[99]        
As I read the authorities, the duty of the physician is to disclose the
risks of the actual procedure being undertaken. I was not referred to any case
that imposed a duty to disclose the comparative risk of a procedure to another,
especially one that was not applicable to the patient.

[100]     In
summary, based on the evidence of Dr. Pharand and Mona Mah, the contents of the
Consent Form and my rejection of the evidence of Mr. and Ms. Maher as to the
oral disclosure that was made, I conclude that the plaintiff has failed to
prove that he was not informed of the risks of the surgery.

[101]    
While this finding is sufficient to dispose of this issue, I will also
address the question of whether any failure to inform Mr. Maher of the risks of
the surgery would have caused him to decide that he should not proceed with it.
The onus is on Mr. Maher to establish that he would not have proceeded
with the surgery had he been properly informed of its risks. In Diack,
the principle is stated at 248 as follows:

 I think the onus is on the
Plaintiff to establish he would not have been injured if he had received a
proper warning. This seems to be the conclusion of Laskin C.J.C. and McLachlin
J. in the cases cited. I think actions against solicitors are in a special
category, and that the fiduciary duty of a solicitor makes it necessary for him
to show that his client’s loss would have occurred in any event: Howard v. Cunliffe
(1973), 36 D.L.R. (3d) 212 (B.C.C.A.) at p. 212; Jacks v. Davis, [1983] 1
W.W.R. 327 (B.C.C.A.) at p. 323-33. Such is not the case when the duty of a
professional is not a fiduciary one.

[102]     The
question that must be addressed is whether a reasonable person in the
particular circumstances of Mr. Maher would have decided to proceed with the
surgery even if the risks of the injuries he suffered had been adequately
explained to him. The proper approach to considering this issue has been set
out in a number of leading cases, including Hopp v. Lepp, [1980] 2
S.C.R. 192; Reibl v. Hughes, [1980] 2 S.C.R. 880;
and Arndt v. Smith, [1997] 2 S.C.R. 539.

[103]     In this
case certain factors suggest that Mr. Maher would have proceeded with the
surgery even if he had been informed that there was a risk of dry eye,
epithelial ingrowth and fluctuating vision. To my mind the critical question
with respect to the risk of these injuries is how likely they were to have occurred.
There is no question that Mr. Maher was highly motivated to improve his vision
to be able to pursue his passion for golf. I also think it relevant that he did
consent to the initial surgery with Dr. Lin. The consensus of the evidence before
me was that the risks of an initial surgery were significantly greater than
those of a retreatment because of the cutting of the initial flap. The evidence
before me was that the risks of complications of a retreatment were very low.

[104]     In her
argument, counsel for Mr. Maher submitted that the determining factor for Mr.
Maher going ahead with the surgery was that he was a candidate. Her submission
is that if Mr. Maher had known there was a high risk of the symptoms he
experienced, a reasonable person in his position would not have gone ahead with
the surgery. The difficulty I have with this submission is that there was no
evidence that the risk of any of these symptoms was high. Dr. Sanmugasunderam
did not give that opinion. In his report Dr. Fromer made no distinction between
the risks of the initial surgery and the risks of a retreatment. He states that
it is clear that complications can arise from laser corrective surgery and that
Mr. Maher suffers from three of those complications; epithelial ingrowth, dry
eye syndrome and fluctuating vision as a result of the dry eye. He did not
quantify the risk of any of those complications arising.

[105]     Dr.
Goldberg did not identify a “high risk” of any of the complications complained
of in this case. Dr. Sutton’s evidence is that complications from the creation
of the initial flap are rare and that the risk of complications from a
retreatment is markedly lower.

[106]     I have
already concluded that Mr. Maher was properly informed of the risks of having
surgery on his good eye given his amblyopia. I also accept that in British
Columbia the standard of practice does not exclude a patient as a candidate for
laser corrective surgery merely because he has moderate amblyopia. Mr. Maher’s
evidence is quite clear that once he was told he was a candidate for the
surgery he decided he would proceed with it. I conclude that he would have
proceeded with the surgery if he had been fully informed of the other risks of
the surgery because he was highly motivated to improve his vision and because
there was only a low risk of the other complications arising.

[107]     I therefore
conclude that Mr. Maher has failed to prove that a reasonable person in
his position would have decided not to proceed with the surgery by reason of
any risk that was not disclosed to him. I therefore find that Mr. Maher’s case
also fails on this ground.

[108]     Given
these findings I do not consider it necessary to address the separate defences
raised by the IRIS Defendants.

[109]     The action
is dismissed against all defendants with costs on scale B.

“The Honourable Mr. Justice Sewell”