IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20140310

Docket: S017001

Registry:
Vancouver

Between:

Pei Xiong Chen

Plaintiff

And

Dr. William
H. Ross and Dr. Shui Hing Lee

Defendants

Before: The Honourable Madam
Justice Ballance

Reasons for Judgment

TABLE OF CONTENTS

Introduction. 4

PROCEDURAL
BACKDROP. 5

Summary
of Evidence. 8

·  General 8

·  Non-contentious Medical Evidence. 10

·  Initial Appointment with Dr. Lee –
February 22, 1996. 12

·  Medical Appointments – March 12, 1996
to October 1997. 13

·  Evidence of Falls Prior to Cataract Surgery. 15

·  Confrontation Visual Field Test before
Cataract Surgery. 16

·  Cataract Surgery and Medical Appointments
to December 31, 1997. 16

·  Evidence of Falls after Cataract Surgery. 17

·  Dr. Thomas’s Consult –
February 5, 1998. 19

·  Dr. Chang’s Consult –
February 12, 1998. 20

·  Other Medical Appointments in 1998. 22

·  Fluorescein Angiogram – October 29,
1998. 23

·  First Appointment with Dr. Lee upon
return from China/Hong Kong. 24

·  Fluorescein Angiogram – December 8,
1999. 25

·  Appointment with Dr. Lee –
January 7, 2000. 25

·  Referral to Dr. Ross –
January 2000. 26

·  Initial Appointment with Dr. Ross – January 21,
2000. 26

·  Second appointment with Dr. Ross and
Fluorescein Angiogram – January 26, 2000. 29

·  Family Meeting – January 31, 2000. 39

·  Membrane Surgery – February 2, 2000. 40

·  Event on February 5, 2000 and its
Aftermath. 41

·  Dr. Anderson Consult –
February 17, 2000. 44

·  Dr. Mikelberg Consult –
February 22, 2000. 46

·  Dr. Maberley Consult – March 16,
2000. 47

·  Subsequent Entry to Dr. Stockl’s
chart 48

·  Dr. Lee’s Treatment of Mr. Chen
after the Membrane Surgery. 49

Expert
Medical Evidence. 50

·  Dr. Frederick Mikelberg. 50

·  Dr. Alan Maberley. 54

·  Dr. Aron Goldberg. 57

·  Dr. Kelvin Finlay. 64

·  Summary of the Medical Evidence. 70

Overview
of the Parties’ Positions. 71

LEGAL
PRINCIPLES. 74

·  Standard of Care. 74

·  Causation. 78

·  Informed Consent 82

DISCUSSION. 84

·  Breach of the Standard of Care and
Causation. 84

·  Informed Consent 102

CONCLUSION. 108

Introduction

[1]            
The elderly plaintiff, Pei Xiong Chen, has suffered from multiple vision
impairments over the span of many years.

[2]            
Mr. Chen was under the care of the defendant, Dr. Shui Hing
Lee, a general ophthalmologist, during the material time frame.  In January 2000,
Dr. Lee referred Mr. Chen to the defendant, Dr. William H. Ross,
a retinal subspecialist, concerning a suspected epiretinal membrane in Mr. Chen’s
left eye.

[3]            
On February 2, 2000, Dr. Ross performed a surgical procedure
known as a pars plana vitrectomy with membrane peel on Mr. Chen’s
left eye.  For convenience, I will sometimes refer to this procedure as
the “Membrane Surgery”.

[4]            
Within days after the Membrane Surgery, Mr. Chen experienced an
acute and dramatic loss of vision in his left eye, and was eventually assessed
as legally blind in that eye.

[5]            
Mr. Chen has brought this action in negligence against Drs. Lee
and Ross.  The thrust of the claim against Dr. Lee is that in the course
of treating Mr. Chen in the capacity of his general ophthalmologist, he failed
to arrange a visual field test to investigate whether Mr. Chen had glaucoma
and, more broadly, failed to diagnose glaucoma despite the fact that he was at
high risk for developing it and had exhibited symptoms and voiced complaints
consistent with peripheral vision loss associated with that disease.  Mr. Chen
alleges that had he been diagnosed with glaucoma prior to the Membrane Surgery,
he would have promptly been referred to a glaucoma specialist and received
appropriate treatment to manage his condition, thereby preserving the vascular fitness
of his optic nerve and enabling it to withstand the Membrane Surgery, and thus prolonging
his sight.  He further asserts that Dr. Lee was negligent in failing to
provide a written referral and Mr. Chen’s medical history to Dr. Ross,
alerting him to the fact that Mr. Chen’s visual acuity had not declined
significantly over the past few years, which, in turn, would have called into
question whether the membrane was responsible for his central vision complaints
and the appropriateness of the Membrane Surgery generally.

[6]            
Mr. Chen also condemns Dr. Ross’s conduct as substandard on these
overlapping, but separate, grounds:  failing to adequately review Mr. Chen’s
medical records before performing the Membrane Surgery; failing to carry out a
visual field test and diagnose Mr. Chen’s glaucoma before performing the Membrane
Surgery; failing to adequately inform Mr. Chen of the general risks
inherent in the operation and of the increased risk due to the presence of his glaucoma;
and carrying out the Membrane Surgery without adequately managing Mr. Chen’s
glaucoma.  Mr. Chen further alleges that the Membrane Surgery was
unnecessary in all of the circumstances, posed him serious risk, and ultimately
caused him grievous harm.  Finally, he accuses Dr. Ross of neglecting to provide
him with appropriate post-operative care.

[7]            
The loss of vision in Mr. Chen’s left eye was devastating to him
and his immediate family and one can only feel sympathy for his ordeal.  Tragic
as that loss no doubt was, for the reasons that follow, I have concluded
that it did not come about by the negligence of either of the defendants. 
Accordingly, I have dismissed Mr. Chen’s claim.

[8]            
Mr. Chen did not have legal counsel for a large portion of this
trial or during much of the lead up to it.  The medical evidence in this case
was complex and the defendants’ conduct was attacked on multiple fronts with an
eye to considerable detail.  I have chosen to address Mr. Chen’s
allegations and summarize the evidence in more depth than I might
otherwise have done, as a means of assuring him that I have taken great
care to consider the entirety of his claim.

PROCEDURAL
BACKDROP

[9]            
The case proceeded in an unusual manner.

[10]        
The trial began on June 25, 2012.  At Mr. Chen’s request,
which was unopposed, I granted permission to his daughter, Heidi Chen, to
assist him in trying his case.  Mr. Chen relied on an interpreter
throughout the proceedings.  He testified in-chief for most of the first day at
trial.  Cross-examination started near the end of the first day and continued
into day two.  Although there were instances, particularly early on in direct
examination, where Mr. Chen appeared to be responsive and coherent, difficulties
surfaced during the course of his testimony, most notably while he was under
cross-examination.  On the second day, he became minimally responsive at best and
his overall demeanour suggested that he was extremely confused.

[11]        
His daughter, Ms. Chen, thought it was likely that her father was
mentally exhausted and/or depleted by the excessive stress he was experiencing
over appearing in Court.  She urged that his apparent non-responsiveness would
likely be rectified by taking a break from testifying.  I endorsed her
proposed course and other witnesses gave evidence for the balance of that day
and the following day.

[12]        
During the trial, I learned from the defendants’ counsel that, in
the preceding year on what was to have been the first day of this trial, the
Court ordered that Mr. Chen be examined by a geriatric psychiatrist to
assess whether he was mentally competent to participate in the litigation.  The
trial was necessarily adjourned at that time.  The psychiatrist, Dr. M.O.
Agbayewa reported that he found Mr. Chen to be coherent, internally
consistent in his responses, with a good autobiographical memory, and good
recall of immediate information.  He observed that Mr. Chen knew what this
lawsuit was about and why he was taking legal action, and the potential
outcomes and consequences.

[13]        
In the unfolding of the trial before me, Mr. Chen returned to the
stand on the fourth day.  There was a stark contrast between Dr. Agbayewa’s
positive assessment of Mr. Chen made some 11 months earlier and my
observations of him when he resumed testifying.  He continued to struggle with
the questions and exhibited what I interpreted to be a general confusion,
or possibly even disorientation.  The trial was adjourned to facilitate a
reassessment by Dr. Agbayewa.  He concluded that Mr. Chen was capable
of participating in the Court hearing and in his financial and legal affairs “with
the assistance of his family and others”.

[14]        
Thereafter, the trial was adjourned to September 24, 2012 due to
scheduling issues.  Prior to the continuation, there was a case conference
where Mr. Chen was present in the courtroom.  Upon observing him that day,
my concerns about his mental capacity to participate in this lawsuit were
revived.  I directed that Ms. Chen make her best efforts to obtain written
confirmation from Mr. Chen’s treating psychiatrist of his mental fitness
to continue to participate as a party.  Sometime later, the Court was advised
that the psychiatrist did not wish to submit such a letter.

[15]        
Cross-examination of Mr. Chen resumed on September 25, 2012. 
At first, and for a short period only, he appeared to be at least marginally
responsive in that he purported to adopt certain pieces of the evidence he had
given at his examination for discovery.  By and large, he did so in the form of
one-word answers such as “yes” or “agree” when asked if his discovery evidence
was true.

[16]        
Within a relatively short time Mr. Chen stopped answering defence
counsel’s questions, most of which were straightforward.  I then posed
simple questions to Mr. Chen such as, “Are you able to tell me where you
are right now?” and “Do you know why you are here today, Mr. Chen?”  His
answers were not coherent.  At the urging of Ms. Chen, I allowed defence
counsel to continue with cross-examination after a 30-minute recess.  Mr. Chen remained
silent after the questions were interpreted for him.  Within a few minutes, it
was plain that his responsiveness had not improved.

[17]        
On September 26, 2012, I stayed this action until a litigation
guardian or committee was appointed for Mr. Chen.  Mr. Chen’s wife
was eventually appointed as her husband’s litigation guardian, and Ms. Sood
was retained as counsel to complete the trial on Mr. Chen’s behalf.

[18]        
Ms. Sood, who came aboard as counsel well into Mr. Chen’s
case, faced challenging circumstances given the complexity of the medical
evidence and Mr. Chen’s compromised capacity to provide instructions and
to testify.  I recognize that Ms. Sood was retained by the litigation
guardian and, therefore, is technically not Mr. Chen’s counsel; however, for
sake of simplicity, in these Reasons I sometimes refer to her as Mr. Chen’s
counsel.

[19]        
The trial continued on December 13, 2012, at which time the
cross-examination of Mr. Chen resumed.  Very soon into questioning, it
became obvious that Mr. Chen continued to lack competence to testify.  He
did not testify again.

[20]        
In the circumstances, I have significant concerns about the
reliability and overall quality of Mr. Chen’s evidence at trial, and in
particular, the evidence given in cross-examination where he seemed to display cognitive
fatigue and limitations.  Despite my reservations, I have not discounted
his testimony across the board, preferring instead to assess its weight on any
given matter in the context of the other trial evidence.

[21]        
There was no suggestion that at the time of Mr. Chen’s discovery on
December 13, 2005, his capacity to testify was impaired in any way.  As
part of their case, the defendants read in parts of his discovery testimony. 
Additional excerpts of the evidence from his examination for discovery were
read in, either by agreement between counsel or as a result of my ruling that
they were closely connected to the answers read in by defendants’ counsel.

[22]        
 In these Reasons, I will refer to Mr. Chen’s discovery evidence
that was read in at trial as his “Discovery Testimony”.

Summary of
Evidence

·       General

[23]        
Mr. Chen was born on May 7, 1930.  He and his family
immigrated to Canada from China in 1994.  After their arrival, Mrs. Chen
took a position working in a factory.  Mr. Chen, who was 64 years old, was
retired and passed his time studying, reading newspapers, playing stocks on the
computer, and taking walks.  It is common ground that being able to read and
use the computer effectively was of tremendous importance to Mr. Chen
throughout the relevant period.

[24]        
Mr. Chen communicates exclusively in Mandarin and does not
understand written or spoken English.

[25]        
Throughout his later years, Mr. Chen has suffered from various
ailments, including an array of vision difficulties as well as diabetes mellitus
that he found challenging to control.  More recently, he has endured strokes
and has become confined to a wheelchair.

[26]        
For a time, Mr. Chen was treated by an English-speaking general
ophthalmologist but found the language barrier posed too great a problem.  He and
his family doctor, Dr. Sammy Lee, conversed in Mandarin. On January 24,
1996, Dr. Sammy Lee referred him to the defendant, Dr. Lee, who is also
fluent in Mandarin and English, for routine diabetic eye care.  Ms. Chen
testified that “peripheral vision” was a second reason for the family doctor’s
referral to Dr. Lee.  However, that was not the case.

[27]        
Because Mr. Chen’s general practitioner has the same surname as the
defendant, Dr. Lee, for clarity, I will refer to the former as Dr. Sammy
Lee, and to the latter as Dr. Lee.

[28]        
Dr. Lee received his medical degree from the University of New South
Wales, Australia, in 1972 and obtained his fellowship of the Royal College of
Surgeons and Physicians of Canada in the speciality of ophthalmology in 1984.  After
completion of a fellowship specializing in ocular plastic surgery in New York
and another in anterior segment surgery with a special interest in the cornea at
the University of Toronto, Dr. Lee began practicing ophthalmology in
Canada in 1990.  He is a member of several medical organizations, a Fellow of
the American Academy of Ophthalmology, a Diplomat of the American Board of
Ophthalmology, and a tutor in the Department of Ophthalmology, Faculty of
Medicine, at the University of British Columbia.

[29]        
Most of his patients come by way of referral from their family doctors
and encompass a myriad of eye problems, the majority of which is blurred
vision.  As a general ophthalmologist, Dr. Lee diagnoses and treats
glaucoma.

[30]        
In the material time frame, Dr. Ross was a prominent retinal
subspecialist.  He was a clinical professor in the Department of Ophthalmology
at the University of British Columbia, and the head of the retina divisions of
both the Vancouver General Hospital and St. Paul’s Hospital.  He also pioneered
the development of a specialized teaching facility for international Fellows studying
to become subspecialists in retinal diseases and surgery.  As a retinal subspecialist,
Dr. Ross’s medical practice concentrated on the diagnosis and treatment of
diseases of the retina, especially those related to diabetes, as well as surgeries
related to the retina.  At the time that Mr. Chen underwent the Membrane
Surgery, Dr. Ross had already carried out between 12,000 and 13,000 eye
surgeries, of which approximately 2,000 to 2,500 were membrane peels.

·       Non-contentious
Medical Evidence

[31]        
The lynchpin of Mr. Chen’s claim is the allegation of a missed or
delayed diagnosis of glaucoma by the defendant physicians.  The uncontroverted
medical evidence was to the effect that there are several kinds of glaucoma, each
of which may have a different etiology.  The shared pathway to vision loss in
patients with glaucoma is the destruction of the optic nerve brought about by
elevated intraocular pressure, the anatomy of the nerve itself, or vascular insufficiency. 
By far, the most commonly occurring variant of glaucoma is primary open angle
glaucoma.  In broad terms, it is classically caused by elevated intraocular
pressure that harms the optic nerve.  Its onset is often subtle, even insidious,
adversely affecting peripheral vision often with no detectible symptoms.  For
that reason, this type of glaucoma is referred to as the “silent thief of sight”.

[32]        
Another form of glaucoma is known as low tension or normal tension
glaucoma.  As the name implies, for reasons that are not entirely understood
medically, damage to the optic nerve in those cases occurs without abnormally
high eye pressures.

[33]        
The optic disc (also known as the optic nerve head) is a circular area
where the optic nerve and blood vessels connect to the retina at the back of
the eye.  In the center of the optic disc is a cup-like region called the optic
cup.  An ophthalmologist routinely compares the diameter of a patient’s optic
cup area of the optic disc against the diameter of the optic disc in which the
cup sits.  This comparative measurement is known as the “cup to disc ratio”,
which I have abbreviated as the “C/D ratio”.  It is a subjective
assessment.  The relevance of the C/D ratio in this case is that the optic disc
in individuals with glaucoma often becomes cupped, producing a large C/D
ratio.  An increased C/D ratio is therefore a factor, albeit inconclusive, that
may indicate the presence of glaucoma.  Considerable evidence elicited at trial
pertained to the appearance of Mr. Chen’s optic nerve and optic disc, and
the assessment of his C/D ratio throughout the material period.

[34]        
It was also established that glaucoma of all types can be detected by
way of a visual field test, which assesses peripheral vision.  One of the
principal contentious issues in the case at hand is whether Mr. Chen ought
to have undergone one or more visual field tests while under Dr. Lee’s
care, either as part of an annual eye examination or due to clinical signs and
subjective complaints that suggested he may have glaucoma.

[35]        
Visual acuity refers mainly to central vision.  A measurement of 20/100
means that an individual can see only at 20 feet what a person with 20/20 sight
is able to see at a distance of 100 feet.  The evidence established that acuity
of 20/50 is the threshold for driving, efficient reading, and computer use.

[36]        
It is also undisputed that a fluorescein angiogram facilitates
examination of the retina and retinal circulation and is a diagnostic tool for
retinal disease and diseases associated with the retina.  The test involves a
series of high-speed colour photographs taken of the retina, mostly of the
retinal vascular system, while a dye called fluorescein, which has been
injected into the patient, passes through the eye.  Each time an angiogram is
done, a set of colour photographs are taken of the eye for documentation
purposes.

·       Initial
Appointment with Dr. Lee – February 22, 1996

[37]        
Mr. Chen was first seen by Dr. Lee on February 22, 1996. 
They conversed in Mandarin and had no difficulty communicating throughout their
doctor-patient relationship.

[38]        
During the initial appointment, Mr. Chen’s main complaint was
blurred vision in both eyes.  Dr. Lee interviewed him about his ocular
history, his medical history, and current medications.  I accept Dr. Lee’s
testimony that Mr. Chen advised that there was no family history of
glaucoma.

[39]        
A magnifying slit lamp examination revealed a diffuse stromal scar on Mr. Chen’s
cornea, cataracts in both his eyes, and dry eye syndrome.  Dr. Lee dilated
Mr. Chen’s pupils and used a direct and indirect ophthalmoscope to examine
the fundus of his eye, which enabled him to look at the retina (including the
peripheral retina), retinal blood vessels, vitreous humour, macula and the
optic disc and optic cup, thereby facilitating assessment of the C/D ratio. 
All appeared normal to Dr. Lee at this visit.  In Mr. Chen’s chart, he drew a
simple diagram of what he had observed as far as the optic disc, optic cup and
blood vessels were concerned.  Dr. Lee assessed Mr. Chen’s C/D ratio;
however, he did not chart it in numeric terms at this or any other appointment
prior to the Membrane Surgery.  This is because Dr. Lee’s practice was to
not record the actual C/D ratio measurement unless he considered it to be
abnormal.

[40]        
Dr. Lee measured Mr. Chen’s visual acuity as 20/100 in his
right eye and 20/60 in his left.  In the course of his examination, he used a
Goldman tonometer to measure the intraocular pressure (“IOP”) of Mr. Chen’s
eyes.  I accept his uncontradicted evidence that at the time and
throughout his treatment of Mr. Chen, there were a number of acceptable
ways to measure a patient’s IOP and the Goldman technique was the “gold standard”. 
Dr. Lee charted Mr. Chen’s IOP as 16 in both eyes, which is within the
normal range.  With perhaps one exception, he did not record the time of day
that he took Mr. Chen’s IOPs.

[41]        
Dr. Lee diagnosed dry eye syndrome and prescribed Mr. Chen
artificial tears.  He also advised him that in order to improve his vision, he
might require cataract surgery in both of his eyes, particularly the right.  I accept
that Dr. Lee told Mr. Chen that if the cataract surgery on the right eye
did not produce the desired outcome, a corneal transplant may be indicated to
further improve his vision.

[42]        
Mr. Chen was reluctant to proceed with cataract surgery at that
time.

·       Medical
Appointments – March 12, 1996 to October 1997

[43]        
When Mr. Chen returned to Dr. Lee on March 12, 1996, he
reiterated his complaint of blurred vision, particularly in his right eye.  On
examination, his visual acuity had not changed.  I accept Dr. Lee’s
evidence that he assessed Mr. Chen’s C/D ratio as normal at that time and,
adhering to his customary practice, did not record it numerically because it
was not abnormal.  The discussion of possible cataract surgery was revived by Dr. Lee. 
He gave credible testimony, supported by the contents of his chart, to the
effect that Mr. Chen expressed a change of mind about undergoing cataract
surgery and said that he would follow up after his trip to Hong Kong.

[44]        
I accept Dr. Lee’s testimony that he waited several weeks for Mr. Chen
to follow-up and, upon hearing nothing further after two-and-a-half months, sent
Dr. Sammy Lee a detailed consult letter setting out his findings, clinical
impression, and suggested management of Mr. Chen based on his initial
assessment on February 22, 1996.  Dr. Sammy Lee had no recollection
of discussing the contents of the consult letter with Mr. Chen.  His view
was that engaging in such a discussion was part of Dr. Lee’s
responsibility as the general ophthalmologist and I am satisfied that Dr. Lee
had done so.  In closing submissions, Mr. Chen’s counsel suggested there
was something careless or otherwise substandard in Dr. Lee waiting this long
a period of time before sending his consult to Dr. Sammy Lee.  The submission
is groundless and does not advance Mr. Chen’s claim.

[45]        
On September 18, 1996, Mr. Chen presented to Dr. Sammy
Lee with worsening acuity in his left eye.  The plan was to follow up with Dr. Lee
the next day.  In her questions to Dr. Sammy Lee in-chief, it was evident
that Ms. Chen believed that a notation of “PERL” that he had charted at
that visit pertained to concerns or complaints her father had expressed about
his peripheral vision.  Dr. Sammy Lee explained that PERL referred to a clinical
test known as “pupils equal and reactive to light” that checks whether the pupils
are functioning properly, and was in no way connected to Mr. Chen’s
peripheral vision.  Of note is that Dr. Sammy Lee had no recollection of Mr. Chen
ever complaining about the impairment of his peripheral vision before he underwent
the Membrane Surgery.

[46]        
Reiterating his complaint of blurred vision, especially in the right eye,
Mr. Chen met with Dr. Lee on September 19, 1996.  Visual acuity
in his right eye was measured at 20/100 with optical correction and the left
eye at 20/60.  His IOP was recorded as 18 in both eyes, which was normal.  Dr. Lee
examined the corneas through a slit lamp and again raised the prospect of
cataract surgery.  I accept his testimony that, as part of the overall
discussion, he cautioned Mr. Chen that cataract surgery would not restore
his visual acuity to a level of 20/20.  Dr. Lee also prescribed bifocal
glasses for Mr. Chen.

[47]        
At Mr. Chen’s appointments on January 18 and June 19,
1997, Dr. Lee recorded his IOP as varying between 18 and 19, which are
within normal parameters.  His visual acuity remained stable.  At the June appointment,
Dr. Lee advised Mr. Chen to come back in six months’ time.

[48]        
Mr. Chen did not wait six months to follow up with Dr. Lee.  Instead,
he returned on August 26, 1997, complaining that his left eye had started
to become blurry.  Dr. Lee found that the visual acuity in Mr. Chen’s
left eye had declined.  At this appointment, Dr. Lee once again used a slit
lamp to examine Mr. Chen’s cornea, found the IOP in both eyes to be normal,
and performed a dilated fundus examination using a direct and indirect
ophthalmoscope.  He also ordered a PAM study that Mr. Chen subsequently underwent
at the eye care center.  The results predicted that Mr. Chen could potentially
achieve 20/25 vision in both eyes after the removal of his cataracts.

[49]        
Mr. Chen saw Dr. Lee on September 25, 1997, complaining
of worsened visual acuity of his right eye, which was confirmed on examination.
I accept Dr. Lee’s testimony that he accurately explained the
results of the PAM study to Mr. Chen and again outlined the “pros, cons
and risks” of cataract surgery.

[50]        
Mr. Chen agreed to move ahead with cataract surgery in his right
eye.  The procedure was scheduled for October 7, 1997.

[51]        
Dr. Sammy Lee assessed Mr. Chen as generally fit to have
surgery.

[52]        
A few days before the scheduled cataract surgery, Dr. Lee saw Mr. Chen
for complaints of pain in his right eye.  Using the direct and indirect
ophthalmoscope, he checked the fundus of Mr. Chen’s eye and assessed it as
normal.  However, in examining the cornea of his right eye with a slit lamp, he
found signs of dry eye.  His impression was dry eye syndrome was the cause of Mr. Chen’s
right eye pain and advised him to use lubricating eye drops.

·       Evidence
of Falls Prior to Cataract Surgery

[53]        
On August 1, 1997, Mr. Chen went to the emergency department
of the Richmond Hospital where he was examined by Dr. Dean Smith.  The
emergency room record noted that Mr. Chen reported having fallen and that
his chief complaint was dizziness.  Dr. Smith charted that Mr. Chen
had been involved in an altercation with a family member, had felt faint, and
fell to the floor.  He also recorded “PERL, unable to visualize fundi”.  Dr. Sammy
Lee reiterated his evidence that the notation of PERL in this record was not a
reference to Mr. Chen’s peripheral vision.

[54]        
Mr. Chen saw Dr. Sammy Lee a few days after his visit to the
emergency room.  He essentially reiterated the entries charted by Dr. Smith
to the effect that he had had a fight with a family member, had been very upset,
and had felt faint.  Dr. Sammy Lee thought Mr. Chen may have fallen
down as a result, but could not be certain.

[55]        
On September 18, 1997, Mr. Chen told Dr. Sammy Lee he had
fallen down.  Dr. Sammy Lee charted that Mr. Chen sustained abrasions
to his knees and his right hand and recorded, “can’t see too well due to
cataracts”.

[56]        
These were the only two incidences recorded by Dr. Sammy Lee that referred
to Mr. Chen having fallen, and both of them had taken place before he
underwent cataract surgery.

·       Confrontation
Visual Field Test before Cataract Surgery

[57]        
Prior to the cataract surgery, Dr. Lee completed a pre-printed Cataract
Pre-operative Assessment Report that required him to carry out specified
examinations of Mr. Chen’s eyes.  Among other things, he measured Mr. Chen’s
IOP, assessed his optic disc, optic cup, macula, and retina using a direct and
indirect ophthalmoscope, and performed a gonioscopic examination.  He found all
the results to be normal.

[58]        
On this occasion, Dr. Lee also carried out a confrontation visual
field test aimed at detecting dysfunction in Mr. Chen’s peripheral vision
and charted the results.  He administered the test by having Mr. Chen
cover each eye while staring straight ahead as he moved his fingers off to the
side of Mr. Chen’s head and out of view and slowly brought them back to
center within Mr. Chen’s visual quadrants.  Dr. Lee’s evidence that
the confrontation visual field test did not reveal any difficulties or deficits
with Mr. Chen’s peripheral vision was unchallenged and I accept it as
accurate.

·       Cataract
Surgery and Medical Appointments to December 31, 1997

[59]        
Dr. Lee performed cataract surgery on Mr. Chen’s right eye on October 7,
1997.  Mr. Chen had several follow-up appointments with Dr. Lee
between October 8 and December 18, 1997.  Dr. Lee checked Mr. Chen’s
IOP at the majority of those visits, each time assessing it as normal.

[60]        
Nine days after the procedure, Dr. Lee noted a substantial
improvement in the visual acuity of Mr. Chen’s right eye.  During the November 20
appointment, he performed another dilated fundus examination and assessed Mr. Chen’s
optic disc, optic cup, retina, macula, and retinal blood vessels as normal.  At
the December 4 visit, Dr. Lee observed signs of opacification of the
posterior capsule behind the lens in Mr. Chen’s right eye.  With Mr. Chen’s
consent, he performed a YAG laser procedure to address the opacification and thereafter
the visual acuity in Mr. Chen’s right eye further improved.  Dr. Lee
prescribed him new glasses.

[61]        
Mr. Chen also saw Dr. Sammy Lee at various times in October, November, and
December 1997.  Dr. Sammy Lee testified that, as was typically the
case, Mr. Chen’s primary complaints on these occasions mostly pertained to
his diabetes condition.

·      
Evidence
of Falls after Cataract Surgery

[62]        
Ms. Chen testified that her father fell several weeks after the
cataract surgery and told her he was tripping all the time because he was not
able to see anything under his nose.  She also said that several weeks after the
surgery her father claimed that he was still in pain and that his right eye vision
had not improved.

[63]        
Dr. Sammy Lee did not chart complaints of eye pain within this time
frame.  On the contrary, at their November 21, 1997 session he noted that Mr. Chen
reported feeling “okay”, even though he could not read the newspaper for more
than ten minutes at a time, “can get double vision”, and felt his vision was
only “so-so”.  At this visit and the next one on December 27, 1997, Dr. Sammy
Lee charted that Mr. Chen was in no apparent discomfort.

[64]        
Ms. Chen had accompanied her father to the December 27
appointment.  Either she or her father told Dr. Sammy Lee that Mr. Chen’s
vision was still blurry and that he wanted a different eye doctor.  Ms. Chen
asked that her father be referred to her general ophthalmologist, Dr. Roger
Thomas, to obtain a second opinion.  At Ms. Chen’s request, Dr. Sammy
Lee made the referral.  His referral form stated that Mr. Chen was
diabetic, had cataract extraction by Dr. Lee in 1997 and complained of and
was concerned about his worsening visual acuity.

[65]        
Ms. Chen claimed that she had also taken her father to see Dr. Lee
after the cataract surgery and told him that her father had fallen and had
developed a pattern of tripping.  According to her, Dr. Lee dismissed
these complaints and attributed the tripping to Mr. Chen having “walked
too fast or something” and offered no tests or treatment.  At times, Ms. Chen’s
evidence was difficult to follow largely because she tended to move in and out
of chronological order in the telling of it.  It was not clear whether her
testimony concerning this discussion with Dr. Lee, which had been given in
the context of her discussion of events before Mr. Chen saw Dr. Thomas,
occurred around then or possibly later in 1999.

[66]        
In direct examination, Dr. Lee testified that Mr. Chen had
never reported to him that he had fallen down and that neither Mr. Chen
nor any member of his family complained about difficulties with his vision
suggestive of peripheral vision loss.  He added that he would have recorded
such complaints in his chart and they were absent.  In cross-examination,
evidence given at his examination for discovery was put to Dr. Lee.  The
excerpt was to the effect that Dr. Lee did not recall Mr. Chen
complaining about falling down and injuring his knees after the cataract
surgery, and continued “that if – he – he probably – I think he mentioned
it but I did not recorded as I never document it”.  Dr. Lee agreed
that he had given that answer on discovery.  However, he was not asked whether
his answer was true or whether he adopted it as part of his evidence at trial. 
The only cogent evidence that Mr. Chen had fallen and injured his knees,
which was the lead-in to the question, pertained to the event that had happened
in September 1997 before his cataract surgery.  Moreover, Mr. Chen’s
Discovery Testimony was that the complaints of falling he expressed to Dr. Lee
referred to two incidences, both of which had occurred before and not after his
cataract surgery.

[67]        
Mr. Chen contended that Dr. Lee’s failure to chart his
complaint of falling indicated that he failed to properly maintain records of his
complaints of vision difficulties, in violation of his duty of care.  This
attempted line of argument did not advance Mr. Chen’s case.  To this
I would add the larger observation that, as it turned out, the evidence
about Mr. Chen’s falls was not germane to the material issues in this
case.

·       Dr. Thomas’s
Consult – February 5, 1998

[68]        
Dr. Thomas assessed Mr. Chen’s vision on February 5, 1998. 
He testified at trial but did not give expert opinion evidence.

[69]        
Dr. Thomas agreed to see Mr. Chen on an urgent basis at the
request of and as a courtesy to Ms. Chen who was his current patient.  It
appears as though Mr. Chen had previously been seen by Dr. Thomas in
or around 1995; however, the details of any prior visits were not in evidence.

[70]        
Dr. Thomas understood that he was being asked to provide a second
opinion to Mr. Chen as to why his vision did not seem better after the
cataract surgery.  He recorded that Mr. Chen complained that he “can’t
read newspaper, falling at times when walking”.

[71]        
Dr. Thomas measured Mr. Chen’s visual acuity as 20/100 unaided
in his right eye, and 20/50 minus in his left, with a normal IOP of 17 on each
side.  Although he did not record the C/D ratio numerically, Dr. Thomas
drew a diagram of the optic cup and disc and wrote the word “cupped” next to it
in his chart.

[72]        
In the consult letter he sent to Dr. Sammy Lee, Dr. Thomas
commented that Mr. Chen’s right optic nerve head appeared cupped.  He did
not reproduce or attach his chart diagram of the C/D ratio or express Mr. Chen’s
C/D ratio in numeric terms.  At trial, he testified that his diagram depicted a
“somewhat large” C/D ratio corresponding to 0.7.  Dr. Thomas said that
that although he did not test Mr. Chen’s peripheral vision, based on his C/D
ratio of 0.7, he would have expected it to be normal.

[73]        
Dr. Thomas discovered evidence of a membrane over the retina of Mr. Chen’s
left eye and arranged for him to be assessed by Dr. Tom Chang, a retinal
subspecialist.  He testified that he did not run any further investigations because
he was not assuming responsibility for Mr. Chen’s overall ophthalmologic care,
and because he regarded the membrane as Mr. Chen’s most urgent ocular
problem.

[74]        
Ms. Chen testified that Dr. Thomas had referred her father to Dr. Chang
because of “cup to disc ratio problems”.  Her understanding was incorrect.

·       Dr. Chang’s
Consult – February 12, 1998

[75]        
Dr. Chang carried out a retinal examination of Mr. Chen on February 12,
1998.  Ms. Chen did not attend.  Dr. Chang did not testify.

[76]        
He recorded the visual acuity in Mr. Chen’s right eye as 20/40 and as
20/60 in his left.  Dr. Chang’s measurement of Mr. Chen’s visual
acuity of his right eye was vastly better than the acuity assessed by Dr. Thomas. 
The evidence established that there is a subjective feature to determining visual
acuity that is dependent on the patient’s level of cooperation and reticence
about guessing at answers during the test.  Those subjective considerations
mean that testing of the same patient by different healthcare providers could
yield slightly different visual acuities.  That variability was demonstrated by
the differences in Mr. Chen’s visual acuity obtained by Drs. Thomas
and Chang.  I understood Ms. Sood to say in closing submissions that both
Drs. Thomas and Chang had recorded Mr. Chen’s IOP as elevated.  That
was not the evidence.  The only evidence of Mr. Chen having high IOPs
prior to the Membrane Surgery is the measurement obtained by Dr. Chang.

[77]        
Dr. Chang arranged for fluorescein angiography to be performed in respect
of both of Mr. Chen’s eyes.  The angiogram was interpreted by Dr. K.
Tawansy under the supervision of Dr. Chang.  They reported a slight disc
pallor with a generous cup in Mr. Chen’s right eye with normal appearing
blood vessels, and the presence of an epiretinal membrane with associated
leakage in his left eye.

[78]        
In his consult to Dr. Thomas, Dr. Chang reported that the
dilated fundus examination revealed a “large cup:disc ratio in both eyes”,
measuring approximately 0.6.  Mr. Chen’s IOP was higher than usual at 23
in his right eye and 24 in his left.  He also wrote:

… Mr. Chen has features
consistent with an epiretinal membrane in his left eye.  At the present time,
his visual functioning is 20/60 and so I have encouraged him to leave this
alone for the time being.  I recognize that he is considerably troubled by
this 20/60 vision although I would like to make sure that he in fact would
appreciate the risks and benefits from surgical intervention prior to obtaining
a 20/70 level of disability in his left eye.  In regards to his diabetic
retinopathy, things are stable at the present time.  I am a bit at a loss
to explain his 20/40 vision in the right eye.  I do not see any overt
macular pathology

[79]        
He added this addendum to the foot of the letter:

ADDENDUM:  Fluorescein
angiography was performed and did not disclose any evidence of cystoid edema in
the right eye.  In the left eye, there was some late leakage appreciated.  This
is likely due to the epiretinal membrane.

[80]        
Based on the main body of this consult, Dr. Thomas understood Dr. Chang’s
advice to be that Mr. Chen’s vision in his left eye would have to get “a
little worse” before the benefits of surgical removal of the membrane would
outweigh the risks it posed.  That said, to Dr. Thomas’s mind, Dr. Chang’s
addendum added a difference in that it reported that Mr. Chen was
experiencing fluid leakage, which signalled to Dr. Thomas that the
membrane was creating damage which was an indication for doing the surgery.

[81]        
Dr. Sammy Lee did not discuss the contents of Dr. Thomas’s consult
letter with Mr. Chen.  He could not recall whether he was ever provided
with a copy of Dr. Chang’s consult to Dr. Thomas or whether, if he
had received it, he had read it.

[82]        
Dr. Lee was adamant that he did not become aware of Mr. Chen’s
appointments with Dr. Thomas and Dr. Chang until after this
litigation was well underway.  Despite the skepticism shown by Mr. Chen’s
counsel in her cross-examination of Dr. Lee, I find there to be no convincing
evidence to indicate or from which to reasonably infer that the respective
consult letters of Drs. Thomas and Chang were forwarded to Dr. Lee, either
by those physicians or by Dr. Sammy Lee.  I conclude that Dr. Lee
was not informed that Mr. Chen had been seen by Dr. Thomas and Dr. Chang
and had no knowledge of their findings or the contents of their consult letters
before the Membrane Surgery.

·       Other
Medical Appointments in 1998

[83]        
Mr. Chen’s first appointment with Dr. Lee in 1998 took place
on March 5.  During that session, the acuity in his right eye was measured
as 20/30 with optical correction, and his IOP was recorded as normal at 18.  Dr. Lee’s
assessment was that he was doing well and should follow-up in six months.

[84]        
As it happened, Mr. Chen decided to proceed with a vitrectomy and
membrane peel on his left eye with Dr. Chang.  In evidence was a hospital consent
form signed by Mr. Chen on March 24, 1998, by which he consented to a
“left vitrectomy and membrane peel by Dr. Chang”.  It is common ground
that Mr. Chen ultimately decided not to go through with the procedure with
Dr. Chang.  His Discovery Testimony was to the effect that Dr. Chang had
informed him of two “failure rates” connected to the procedure; one was 20 percent
and the other was 15 percent.  Mr. Chen said he felt that what Dr. Chang
was telling him was not reliable and he did not trust him.  Ms. Chen
testified that she understood from her father that Dr. Chang’s estimated
failure rate for the membrane procedure was 20 percent.  She said she warned
her father that the risk was “too high” and there was “no way” he should
undergo the operation.  The evidence of what Dr. Chang may have advised Mr. Chen
and what Mr. Chen, in turn, told his daughter concerning the risks of a
membrane peel procedure was not admitted as evidence at trial for the truth of
its contents.

[85]        
The foregoing events were not known to Dr. Lee.

[86]        
When Mr. Chen returned to Dr. Lee on May 4, 1998, he complained
that he was not able to see as well as he had expected.  In the course of that
visit, Dr. Lee discovered that Mr. Chen had not filled his prescription
for glasses that Dr. Lee had written almost five months earlier.  Dr. Lee
admitted to being a little “emotional” that Mr. Chen had not taken the step
of obtaining his glasses.  He rewrote the prescription and urged Mr. Chen
to have it filled.

[87]        
Mr. Chen next saw Dr. Lee on August 25, 1998.  At that visit,
Dr. Lee examined Mr. Chen’s fundus and concluded that his optic disc,
optic cup, macula, retinal blood vessels, and peripheral retina looked
healthy.  Mr. Chen returned on October 22, 1998, this time reporting
that he could not see well out of his left eye.  Dr. Lee assessed the optic
disc as normal; however, he spotted what he thought may be evidence of
hemorrhage in Mr. Chen’s left macula, which led him to question whether Mr. Chen
might have age-related macular degeneration.  His clinical impression was of a
left macula hemorrhage related to age-related macular degeneration.  Based on
these findings, he arranged for fluorescein angiography.

·       Fluorescein
Angiogram – October 29, 1998

[88]        
An angiographic study was done at the Vancouver General Hospital on October 29,
1998 (the “October 1998 Angiogram”).  The results were interpreted by Dr. Purohit
and reviewed by Dr. Alan Maberley, a senior and respected retinal
subspecialist.  Dr. Maberley was called as a witness and gave expert
opinion evidence at trial on Mr. Chen’s behalf.

[89]        
The October 1998 Angiogram report did not mention any perceived pathology
of the optic disc in Mr. Chen’s right eye and stated that the “fundus
photographs of the left eye shows a normal appearing optic disc and retinal
vessels”.  Nor did it mention any observed cupping or report the C/D ratio in
either eye.

[90]        
The quality of the photographs of Mr. Chen’s right eye was documented
as being poor.  As to the left eye, the report noted angiographic evidence of cystoid
macular edema and an unusual appearance of the left fundus.  The doctors who
interpreted the angiographic studies were not able to determine from the
photographs whether the problem in the left eye was a possible epiretinal
membrane or chorioretinal dystrophy.  Consideration of obtaining further
imagery of both eyes and an electroretinogram was recommended.  Dr. Maberley
testified that the purpose of the electroretinogram would be to rule out
macular dystrophy and a severe vascular component.

[91]        
Dr. Lee received and reviewed the October 1998 Angiogram, including
the colour photographs.  He was satisfied that Mr. Chen’s optic disc and optic
cup in both eyes looked normal.

[92]        
At Mr. Chen’s next appointment on November 16, 1998, Dr. Lee
thought he detected a small epiretinal membrane; however, he was not certain
and still considered it possible that Mr. Chen may have age-related macular
degeneration.  I am satisfied that Dr. Lee discussed the results of
the October 1998 Angiogram and his clinical findings with Mr. Chen,
told him he wanted to follow him more closely, and recommended that he have a
fresh angiogram.  Mr. Chen informed Dr. Lee he was planning to leave
the country for about a year, and asked for a letter describing his eye
condition.  Complying with the request, Dr. Lee prepared a brief letter
dated November 16, 1998, addressed “to whom it may concern”, summarizing Mr. Chen’s
ocular problems, and inviting the recipient to contact him with questions.  Dr. Lee
understood that Mr. Chen wished to seek a second opinion in relation to
his vision difficulties from a physician in China and that his letter might be
used for that purpose.

[93]        
As revealed in both his Discovery Testimony and his testimony at trial,
Mr. Chen’s vision in both eyes deteriorated in the year or so that he was
away from Vancouver, travelling in China and Hong Kong.  He explained that he
did not see an eye doctor while away because it was too expensive and he
planned to return to Vancouver.

·       First
Appointment with Dr. Lee upon return from China/Hong Kong

[94]        
Mr. Chen did not return to see Dr. Lee for nearly 13 months. 
Dr. Lee’s medical chart indicates that a different family doctor, Dr. Janet
Sun, referred Mr. Chen back to him, resulting in an appointment on December 3,
1999.

[95]        
 At that time, Mr. Chen complained to Dr. Lee of blurred
vision in both eyes and, in particular, of deteriorating visual acuity in his
left eye.  At 20/100 with optical correction, Dr. Lee found that the
visual acuity in Mr. Chen’s left eye had significantly declined.  He concluded
that the fundoscopic examination supported his clinical impression of
age-related macular degeneration in the left eye; however, he remained of the
view that a new fluorescein angiogram was required.

·       Fluorescein
Angiogram – December 8, 1999

Dr. Lee arranged for Mr. Chen to have a fluorescein
angiogram on December 8, 1999 (the “1999 Angiogram”).  Those results
were interpreted by Dr. K. Colleaux and Dr. Alan Maberley’s son, Dr. David
Maberley, who is also a retinal subspecialist.  The left eye was said to have a
prominent epiretinal membrane and mild vascular “tortuosity”, with significant cystoid
macular edema.  The evidence established that the term “tortuosity” refers to
the membrane tugging on Mr. Chen’s retina.

[96]        
The report mentioned a C/D ratio in Mr. Chen’s right eye of 0.7
with healthy vessels.  The C/D ratio in the left eye was also recorded as 0.7;
however, the membrane was said to obscure the appearance of the underlying
vessels.  The 1999 Angiogram report contained no comment about the appearance
of Mr. Chen’s optic nerve and closed with this statement:  “Appropriate
referral for consideration of possible vitrectomy membrane peeling is
indicated, as this patient may benefit visually from this procedure”.

[97]        
Dr. Lee reviewed the 1999 Angiogram report and photographs.  His
impression was that Mr. Chen’s optic disc, optic cup, macula, and blood
vessels looked good and appeared normal.  He concluded that Mr. Chen had a
large epiretinal membrane with cystoid macular edema in his left eye.

·       Appointment
with Dr. Lee – January 7, 2000

[98]        
I accept Dr. Lee’s evidence that his examination of Mr. Chen’s
eyes on January 7, 2000, which included a fundoscopic examination, revealed
no abnormal findings.  He testified that the C/D ratio of 0.7 noted in the 1999
Angiogram report did not cause him concern because his clinical assessment had
confirmed a healthy looking optic nerve head.

[99]        
During this appointment, Dr. Lee explained the 1999 Angiogram
findings to Mr. Chen and advised him that the membrane was the cause of
the worsening vision in his left eye.  He recommended that Mr. Chen be
referred to Dr. Ross, a retinal subspecialist, and Mr. Chen agreed.

·       Referral
to Dr. Ross – January 2000

[100]     Drs. Lee
and Ross enjoyed a good working relationship of long standing.  Dr. Lee
often referred patients to Dr. Ross by telephone rather than by written
referral, an arrangement Dr. Ross found acceptable.  In keeping with that
pattern, Dr. Lee called Dr. Ross to discuss the referral of Mr. Chen.
I am satisfied that during their conversation, Dr. Lee provided a
brief synopsis of Mr. Chen’s presenting visual difficulties, explaining that
he was a diabetic and had an epiretinal membrane that had resulted in
impairment of his ability to read, and that he ought to be seen as soon as
possible.  The reason for the referral was the presence of the epiretinal
membrane on Mr. Chen’s left retina that was obstructing his central vision.

[101]     Dr. Ross
agreed to see Mr. Chen and an appointment was scheduled for January 21,
2000.

·       Initial
Appointment with Dr. Ross – January 21, 2000

[102]     Mr. Chen’s
first visit with Dr. Ross took place at his private office on January 21,
2000.  Mr. Chen was accompanied by his son-in-law, Edward Shen who was Ms. Chen’s
husband at that time.  Mr. Shen was employed as an administrator at the
University of Hong Kong at the time of trial and testified in English with no
language difficulty.

[103]     Mr. Shen
acted as his father-in-law’s interpreter throughout this appointment and the
next one on January 26 with Drs. Stockl and Ross.  According to him, he
translated the discussion in a literal fashion on both occasions.  Mr. Chen’s
Discovery Testimony, which I accept, was that he trusted that
Mr. Shen was interpreting the important matters raised at these
appointments.

[104]     Dr. Ross
had none of Mr. Chen’s past medical records.  He persuasively explained
that it was not important for him to obtain them in order to assess Mr. Chen
in the realm of his subspecialty.  This is because he always conducts his own
examination and arranges whatever battery of tests he considers appropriate in
order to ascertain for himself the patient’s precise and current retinal pathology.

[105]     Mr. Shen
testified that through him, Mr. Chen informed Dr. Ross that he had
had cataract surgery on his right eye and that his eye condition had not
improved.  In the context of giving this evidence, Mr. Shen went on to say
that Mr. Chen had problems tripping and difficulty distinguishing colours,
using the computer and reading, and had been recommended to have membrane surgery
in the past “but the risk was very high”.  It was not clear whether this latter
piece of evidence was intended to convey that Mr. Shen had actually
informed Dr. Ross of Dr. Chang’s  past surgical recommendation, or
was simply informing the Court of his knowledge of the medical background in
general terms.  In the event and to the extent that his evidence was that he
told Dr. Ross that Mr. Chen had previously been advised to undergo a membrane
peel, I find he is mistaken.  The preponderance of the evidence, including
the forceful testimony of Dr. Ross, is persuasively to the opposite effect. 
Like Dr. Lee, Dr. Ross was not aware that Mr. Chen had been
diagnosed with an epiretinal membrane by another retinal subspecialist in 1998
and had come close to undergoing the very surgery that he was consulting Dr. Ross
about.

[106]     In his
Discovery Testimony, Mr. Chen said that when he first saw Dr. Lee,
his complaint was that one of his eyes was not comfortable.  He said that over
time, he told Dr. Lee that his sight was worsening and negatively
impacting his ability to read and do stocks on the computer, and that on at
least two occasions he had tripped and fallen.  His Discovery Testimony was
that he basically told Dr. Ross the same thing about his eyesight as he
had told Dr. Lee.  When asked during his evidence in-chief to recount what
he told Dr. Ross about his eye complaints, Mr. Chen replied that he
had said he had a bad eye, that his vision was blurry, and that his eyes would
become teary and painful after reading the newspaper or looking at the stock
market figures on the television.  According to him, those were the very
problems he had been seeing Dr. Lee about for so long.

[107]     I accept Dr. Ross’s
evidence that Mr. Chen’s presenting complaint was that he had difficulty
seeing and reading.

[108]     In the
course of his examination, Dr. Ross measured Mr. Chen’s visual acuity
as 20/70 in his left eye and found his IOP to be 14 in both eyes, which is
normal.  According to Dr. Ross, the degree of visual compromise in Mr. Chen’s
left eye was significantly inferior to an acuity level of 20/50 and meant he
was severely visually impaired and could not read or use a computer well or
with any efficiency, which detrimentally impacted the quality of his life.  Dr. Ross’s
evidence was consistent with the other medical evidence, and I accept it.

[109]     Dr. Ross’s
evidence, which was supported by the expert medical evidence, was that the C/D
ratio is an important factor in determining whether there is an index of
suspicion for glaucoma, but, of itself, is not conclusive.  This is because many
patients with a large C/D ratio do not have glaucoma and others with small C/D
ratios may have it.  He testified that the health of the tissue of the
neuroretinal rim surrounding the optic disc is a far more important factor in
assessing glaucoma than a standalone measurement of the C/D ratio.

[110]     Dr. Ross
assessed Mr. Chen’s C/D ratio as 0.7 in his right eye and 0.8 in his
left.  He found that the neuroretinal tissue at the margin of Mr. Chen’s
optic disc had “good colour” and looked healthy in both eyes, leading him to
conclude that Mr. Chen had a normal variant of an increased C/D ratio.  He
charted no diabetic hemorrhages.

[111]     Dr. Ross
observed a “very very thick” stage 2 membrane obstructing Mr. Chen’s
left retina like a piece of wax paper.  His impression was that the membrane
was the source of the poor visual acuity in Mr. Chen’s left eye and his corresponding
impairment to see and read.

[112]     Dr. Ross
informed Mr. Chen of the presence of the membrane and advised that further
testing would have to be done before he could come to a firm conclusion
regarding surgical intervention.  This diagnosis was not news to Mr. Chen:
he had been aware of the existence of the membrane for nearly two years.

[113]     Following
his usual practice, Dr. Ross arranged for Mr. Chen to have fluorescein
angiographic studies to confirm the membrane diagnosis and document the present
pathology, including whether the membrane was causing any fluid leakage.  He
sent a consult letter to Dr. Lee dated January 21, 2000, in which he
summarized his findings, including that Mr. Chen’s optic disc looked
healthy, and said he would discuss the results of the angiographic studies with
him when they became available.

[114]     Mr. Shen
testified that Dr. Ross had many patients that day and the initial visit
with him was very brief, lasting approximately five minutes.  Dr. Ross
said he would have spent between 10 and 15 minutes with Mr. Chen at that
first appointment.  He said he requires roughly 10 minutes to perform the necessary
eye examination and determine the next steps to be taken.  He testified that
the fact that Mr. Chen communicated through an interpreter did not
increase the duration of his examination, explaining that his eye examination
is a very objective and technical undertaking, in contrast to diagnosing, for
example, a stomach ache or pain.  Dr. Ross stated that he is able to fully
examine the eye of someone who does not speak at all.  I accept his evidence.

·       Second
appointment with Dr. Ross and Fluorescein Angiogram – January 26,
2000

[115]     At the
time, Dr. Frank Stockl was a postgraduate doctor who had completed his
residency in ophthalmology and was on his way to becoming a subspecialist in
retinal diseases and surgery.  By January 2000, he had been Dr. Ross’s
Fellow for approximately seven months.  Dr. Ross praised him as an
exceptionally brilliant and skilled Fellow.

[116]      The angiographic
testing requisitioned by Dr. Ross was performed on Mr. Chen at the
St. Paul’s eye clinic on January 26, 2000 (the “2000 Angiogram”).  Acting
within his purview as a Fellow, Dr. Stockl interpreted the results under
the supervision of and in conjunction with Dr. Ross, and in the presence
of medical students.

[117]     Dr. Stockl
viewed the colour fundus photographs stereoscopically which gave him a three-dimensional-like
depth perception.  The photographs of both eyes were recorded as demonstrating
a normal optic disc with a healthy neuroretinal rim.  Dr. Ross explained that
meant there was no evidence of optic disc excavation that is commonly
associated with glaucoma.  The presence of a diffuse stage 2 epiretinal
membrane in the left eye was confirmed.  The left eye was said to show
increased tortuosity of the vessels surrounding the membrane.  Evidence of fluid
leakage from the macula, which could be accounted for as a secondary effect of
the membrane, was also observed.  Dr. Ross testified that the presence of
fluid indicated that Mr. Chen’s left retina was being pulled on and
undergoing further degeneration.  He said the fluid had given rise to cystoid
macular edema which was of great concern and a chief indication for doing the
membrane peeling procedure.  Dr. Ross believed that Mr. Chen’s left
eye was still salvageable and concurred with Dr. Stockl’s view that surgical
removal was indicated.

[118]     According
to Mr. Shen, at this appointment or the previous one, Dr. Ross had
advised that if Mr. Chen did not have the operation, he would lose
his vision in three to six months.  At a subsequent point, Mr. Shen agreed
that Dr. Ross had said that he could (as distinct from would)
very well lose his vision in three to six months.  Dr. Ross confirmed that
he told Mr. Chen that the fluid leakage at the macula could eventually
produce an irreversible loss of vision.  His evidence on the point was if Mr. Chen’s
membrane was not removed it would continue to contract and allow additional
damage to accrue to the underlying retina, leading to greater vision loss.  The
testimony of Dr. Ross and Mr. Shen in combination with Mr. Chen’s
Discovery Testimony satisfies me that Mr. Chen understood from Dr. Ross
that he could potentially lose his vision, possibly in both eyes, if the
membrane was left untreated.  There was no evidence to indicate that
Dr. Ross’s advice concerning the prognosis with regard to the membrane was
incorrect.

[119]     In his evidence-in-chief,
Mr. Shen portrayed the interaction with Dr. Ross as being very brief again
on January 26 and recalled that it was interrupted when Dr. Ross left the
session to deal with an urgent patient call.  He testified that he and his
father-in-law waited for Dr. Ross to return for more than half an hour.  Mr. Shen
eventually wandered into the hallway area of the clinic where he came across Dr. Ross
and reminded him that they were still waiting.  He testified that Dr. Ross
guided them to another area and asked the nurse to explain the mechanics of the
membrane peeling procedure using an anatomical model of an eye.  Mr. Shen said
it was at that point that his father-in-law asked Dr. Ross about the risks
involved in the membrane operation.  Mr. Shen’s perception was that Dr. Ross
was getting annoyed and that he had firmly replied that it was a routine
procedure that he had carried out many times and that the success rate was
about 95 percent.  Mr. Shen said that his father-in-law tried to ask Dr. Ross
some questions that he had prepared, but that Dr. Ross left them in the
hallway, implying that he was too busy to be bothered with their queries.  Mr. Shen
later recounted that the one question Mr. Chen did ask Dr. Ross was
whether the procedure would be handled by him or others, and that Dr. Ross
confirmed he would perform the operation but medical students would be on-site
for observation purposes.

[120]     In direct
evidence, Mr. Shen claimed that Dr. Ross did not elaborate on the
nature or chances of the risks associated with the proposed surgery or explain
what 95 percent success actually meant.  I note parenthetically there
is an error of significance in the transcription of Mr. Shen’s evidence on
this matter provided by the private reporting service.  In cross-examination, however,
Mr. Shen conceded that the concept of a successful outcome in the sense
that there would be some improvement of Mr. Chen’s vision in his left eye,
even if it were only a minor improvement, was well-understood by him and Mr. Chen. 
He elaborated that “they” understood that if all went well with the Membrane
Surgery, Mr. Chen’s eye condition would not deteriorate and he would not
lose the vision in his left eye on account of the membrane.  Mr. Shen
confirmed that his father-in-law’s hope was that the improvement would be
sufficient to enhance his ability to read because that activity was so
important to him.

[121]     Mr. Shen
said that in this discussion with Dr. Ross, they focused on the success
rate of the surgery, and did not use the term “failure”.  He insisted that at
no time did Dr. Ross mention the risk of blindness.  At the same time,
however, he admitted that he “knew for sure there could be complications and
thought the five percent referred to complications”.

[122]     Mr. Shen
testified that Dr. Ross asked Mr. Chen to sign a blank consent form
that the nurse had handed to him earlier.  I accept Mr. Shen’s
evidence to the effect that after Dr. Ross left, he asked the nurse to
repeat her explanation of the procedure of the proposed surgery and she did so. 
He continued, “and then I think Mr. Chen thought deeply hard to see
whether he wanted to go for – go for the procedure” and then signed the consent
form.

[123]     According
to Dr. Ross, and I find, Dr. Stockl was very much involved in
Mr. Chen’s care on January 26 and took the lead in advising Mr. Chen
about the risks and benefits of the Membrane Surgery.  Dr. Ross’s medical
file contained separate pages in different handwriting charting the January 26
appointment with Mr. Chen.  I accept Dr. Ross’s evidence that these
pages consist of the chart that he kept and the chart independently created and
maintained by Dr. Stockl.

[124]     In his
evidence-in-chief, Mr. Shen did not recall meeting with Dr. Stockl at
any point on January 21 or 26.  In cross-examination, he allowed that
Dr. Stockl had met with them on January 26.  However, he gave
virtually no evidence about any interactions or discussions that he and/or Mr. Chen
may have had with Dr. Stockl during the session on January 26.  Mr. Shen’s
poor recall on the matter and his lack of evidence about Dr. Stockl’s
involvement was unsettling.

[125]     I am
satisfied that Dr. Stockl met with Mr. Chen and Mr. Shen for
approximately 15 minutes after the 2000 Angiogram had been carried out.  As
had Dr. Ross, he measured Mr. Chen’s visual acuity for both eyes at
20/70.  He assessed Mr. Chen’s IOP as 16 on the right and 13 on the left,
and performed slit lamp and dilated fundus examinations.  No abnormalities or
concerns were charted.

[126]     I find
that it was after Dr. Stockl’s examination of Mr. Chen that Dr. Ross
joined the meeting to review the results of the 2000 Angiogram and discuss the
planned course of action.  Dr. Ross testified that from the start of Dr. Stockl’s
fellowship some seven months earlier, they had together reviewed the risks and
benefits of this type of surgery with patients twice a week on average.  I accept
Dr. Ross’s evidence that as a routine part of the protocol of working with
his Fellow, he instructed Dr. Stockl to inform Mr. Chen of the
surgical risks and benefits.  With Mr. Shen acting as the interpreter, Dr. Stockl
did so in Dr. Ross’s presence and under his appropriate supervision.  Dr. Ross
persuasively testified that Dr. Stockl disclosed to Mr. Chen a
breakdown of the nature of the risks and benefits of the proposed surgery, and
the expected chances of their occurrence.

[127]     Dr. Stockl
did not chart the particulars of his disclosure at that time.  As will be
explained, he recorded those details much later and after Mr. Chen had
effectively lost the sight in his left eye.  What Dr. Stockl did chart on January 26
after he reviewed the risks and benefits with Mr. Chen, was: “Plan. 
Explained risks/benefit of surgery.  Pt accepts.”  Dr. Ross clarified
that Dr. Stockl used the abbreviation “Pt” for the word “patient”.

[128]     Dr. Ross
recalled that, in addition to what Dr. Stockl disclosed to Mr. Chen,
he told him that the surgery was routine and had about a 90 to 95 percent
chance of success.  In cross-examination, Dr. Ross stood by his evidence
that he had told Mr. Chen the success rate of the surgery was between 90
and 95 percent, which he considered to be a reasonable and conservative
estimate.  He testified that the global success range of 90 to 95 percent referred
to Mr. Chen achieving one or two lines of visual improvement on the eye
chart or recapturing some improved vision, in the sense of permitting him to
read with less distortion.  Regaining two lines to 20/50 would enable Mr. Chen
to resume using his computer and reinstate his ability to read, both of which
were very important objectives to him.

[129]     Dr. Ross
also agreed that it was accurate to say that he would have told Mr. Chen that
the membrane peel was a routine procedure with a success rate of about 95
percent and that success meant some improvements or minor improvements and that
at least some minor improvement was expected from the surgery.  In agreeing
that summation was accurate, I did not understand Dr. Ross to be
retreating from attempting to modify the evidence he had repeatedly given
earlier to the effect that in his discussion with Mr. Chen, he summarized
the success rate as between 90 and 95 percent.  As I will discuss in my
analysis of the issue of informed consent, I do not consider Dr. Ross’s
evidence on this point to be internally inconsistent.

[130]     Dr. Ross
credibly recounted that when he returned to his office later that day, he recorded
in his chart the risks and benefits that had been explained to Mr. Chen by
Dr. Stockl as best as he could recall them.  His entry reads:

Risks + Benefits reviewed PT + son-in -law

– 60%   2 line improvement

– 30%   less distorted central
VA

– 10%   significant complication
i.e. R.D., endophthalmitis, loss of eye

[131]     Dr. Ross
admitted that he did not remember what Dr. Stockl had said word for word,
but was confident that his chart reflected the “same ballpark” of what Dr. Stockl
had told Mr. Chen.  He clarified that “R.D.” referred to retinal
detachment; “endophthalmitis” is the medical term for infection; and that “loss
of eye” meant blindness.  He explained that the risk of a patient sustaining a
complete vision loss as a result of the membrane peeling procedure represented
about one to two percent of the overall chance of complications.

[132]     Dr. Ross
noted that the prognosis for Mr. Chen gaining two lines of improvement in
vision would worsen if his vision were to decline while awaiting the surgery. 
By way of example, he stated that if the operation was performed after Mr. Chen’s
vision had declined to say, 20/100, then the best improvement he could achieve would
only be two lines raising his acuity level to just 20/80, which still represented
significantly compromised central vision.

[133]     I accept Dr. Ross’s
unchallenged evidence that because of the thickness of Mr. Chen’s membrane
and the cystoid macular edema it was causing, together with his already
significantly compromised central vision, there was a degree of urgency in
performing the operation so as to preserve the potential of recapturing two
lines of vision.  He therefore moved Mr. Chen ahead of other patients.

[134]     Dr. Ross
described the consent document signed by Mr. Chen as a form mandated by the
hospital to verify the procedure that is to be carried out and a prerequisite
to hospital admission.  I accept that sometimes Dr. Ross would have a
patient sign a blank consent form and at other times would write the procedure
on the form before it was signed.  I also accept Dr. Ross’s evidence
that, in accordance with his customary practice, he and Dr. Stockl first
obtained Mr. Chen’s verbal consent on January 26, 2000 to having the
Membrane Surgery after advising him of the process, benefits, and risks it
entailed, and only after doing so, did he seek and obtain his written consent
on the hospital form.

[135]     One of the
recurring criticisms levied by Mr. Shen in his evidence was the two
appointments with Dr. Ross happened very quickly and Dr. Ross always seemed
extremely busy, in a hurry, and spent very little time with Mr. Chen.  Dr. Ross
responded that he and the other clinic doctors moved quickly in order to manage
the high volume caseload, but said they always examined each patient thoroughly
and spent the time necessary to explain matters.

[136]     Some
important features of Mr. Chen’s Discovery Testimony and his evidence
in-chief were at odds with Mr. Shen’s recollections.  First of all, he
testified that Dr. Ross had spent a lot of time with him on January 26
– over an hour – and recalled that a “practicum doctor”, whom I find was Dr. Stockl,
was also in attendance.

[137]     Early in
his direct evidence, Mr. Chen testified that Dr. Ross told him that the
success rate for the membrane procedure was 90 to 95 percent and reiterated
that evidence at least twice more while still giving his evidence in-chief.  In
his direct evidence, Mr. Chen was not asked and did not say what
Dr. Stockl had advised him with respect to the relative risks and benefits
prior to the Membrane Surgery, or whether either Dr. Ross or
Dr. Stockl had disclosed that the loss of his sight was a material risk.

[138]     In
cross-examination, Mr. Chen appeared to agree with the proposition put to
him to the effect that Dr. Ross had informed him that there was a five percent
risk of blindness with the proposed surgery.  That evidence was given late in
the trial day when Mr. Chen’s general responsiveness to questions had
declined considerably and he was displaying signs of fatigue.  In the
circumstances, I ascribe no weight to it.  However, I do attribute a degree
of weight to his direct evidence given when he appeared to be coherent and
responsive, that Dr. Ross had advised him the overall success rate for the
membrane peel was 90 to 95 percent.

[139]     The issue
of disclosure by Dr. Ross of blindness as a material risk of the Membrane
Surgery was canvassed at Mr. Chen’s examination for discovery.  Prior to
his discovery, Mr. Chen had prepared a handwritten statement in Chinese,
which was subsequently translated and typed into English.  At his discovery, he
had the typed English version in hand and made reference to it when being
questioned about what Dr. Ross had advised him in relation to the risks of
having the Membrane Surgery and, in particular, whether he understood that one
of those potential risks was blindness.  The exchange began this way:

139      Q      When
you talked to Dr. Ross, he also talked to you about a failure rate?

A       He
said 5 percent.

140      Q      Dr. Ross
told you that there was a 5 percent chance of blindness as a consequence of
this surgery?

A       Well, he didn’t say
blindness.  Just saying that failure.  Failure is 5 percent, but if you recover
well, then you could see.

[140]     At that
point in the discovery, Mr. Lepp for the defendants directed Mr. Chen’s
attention to the portion of the English statement and quoted the following passage:

145      Q      But
by the time I went back on the 26^th I had my doubts
again.  Dr. Ross saw that I was struggling with my decision.  Told me
that the success rate and the rate of maintaining status quo was 95 percent with
just five percent chance of blindness.  I was relieved after hearing
this and thought to myself, this professor was really good, much better than
the others.

A       Yeah,
better than Dr. Chang.

[Emphasis added]

146      Q      Is
what I just read your best memory of what Dr. Ross told you?

A       What he said there is
not complete.  He said successful rate is 95 percent.

[141]    
That was closely followed by a series of questions and answers in
reference to what Dr. Ross told Mr. Chen about the percentage chance
of blindness as a consequence of the procedure.

149      Q         I
know that you and Dr. Ross spoke of other things.  I simply wanted to
know if what I read to you from your statement was your best memory of
that part of the conversation?

A       As
I said earlier, it is not complete.

150      Q         But
he did tell you there was a chance of going blind.

A       Yes.

151      Q         And
you thought that that chance was about 5 percent.

A       Yes
that – I believed him, yeah.  Dr. Chang is only 80 percent.  And he
said 95.  So he is comparing, he is better than Dr. Chang.

152      Q         I
understand.  But you understood the risk of blindness was about 5 percent.

A       Yes, yes, failure.

[142]     At an
adjournment of the trial, it was discovered that a crucial portion of the
English version of Mr. Chen’s statement had been mistranslated.  The
phrase “with just five percent chance of blindness” read aloud to him as
question 145 (underlined for clarity) and purporting to have been part of his own
statement, should have read “with just five percent chance of failure”. 
Therefore, although Mr. Chen appeared to agree that Dr. Ross had
advised him there was a five percent chance of blindness, the translation error
introduced an element of unfairness to the question and may have tainted his
answer.

[143]     That said,
however, there was no evidence that the word “blind” used in question 150 was mistranslated
at the discovery.  Consequently, quite apart from the issue bearing on the
mistranslation of the English version of Mr. Chen’s statement put to him, in
his answer to question 150, he agreed that Dr. Ross told him there was a
chance of going blind with the surgery.

[144]     Mr. Chen
gave the following evidence at a later point in his discovery:

198      Q         Do
you have any memory of anybody on January 26 talking about the risks of
the surgery?

A          Yes.  Yes, mentioned about the risks.

199      Q         Who
was that?

A          The doctor

200      Q         Which
doctor?

A          Dr. Ross

201      Q         What
did he say?

A          Five percent failure rate.

202      Q         And
you were willing to accept the failure rate?

A          Yes, because no other way.  I have
written six points to ask him, but later didn’t get – finally didn’t get the
chance of asking.

203      Q         You’ve
already told me that you decided not to ask him after your meeting with the
family?

A          Yes.  Well, the family members said don’t
do anything extra.

204      Q         The
family said don’t ask any more questions if you want to have the surgery.  And
you agreed?

A          Yeah, accept and don’t ask.  If you don’t
want to accept the surgery, then you ask.

205      Q         Okay.
So you decided to accept the surgery?

A          That’s right.

206      Q         And Dr. Ross answered any
questions that you did have?

A          No.

207      Q         Did
you have any questions?

A          No, I didn’t ask.

·       Family
Meeting – January 31, 2000

[145]     Mr. Chen’s
surgery was originally scheduled for February 1, 2000.  Mr. Shen
recalled that on the eve of the surgery his father-in-law was very anxious and convened
a family meeting to debate the pros and cons as to whether or not he should
proceed.  Mr. Shen and Ms. Chen both understood from Mr. Chen
that in 1998 he had been told by Dr. Chang that there were “a lot” of
risks with the surgery, the risk factor was high, and the success rate of a
membrane peel was 80 percent.  They said they both had that information in mind
when debating the positives and negatives of the surgery proposed by Dr. Ross.

[146]     According
to Mr. Shen, on the occasion of the family meeting, Mr. Chen compared
his understanding of Dr. Chang’s assessment for success against what Mr. Shen
said was the more promising assessment of 95 percent given by Dr. Ross.  His
recollection was that Mr. Chen and the rest of the family referred to the
remaining five percent as “complications”, and not as failure or as blindness,
implying that there was a difference.  However, his evidence did not align with
Mr. Chen’s Discovery Testimony to the effect that the family discussed a
five percent “failure rate” during the meeting.

[147]     Ms. Chen
testified that the family members discussed the potential outcomes of Dr. Ross’s
surgery in terms of a 95 percent success rate and a five percent “failure” rate. 
She was very opposed to her father having the operation because she considered
the risk of a “5 percent failure” to be “too dangerous”.  She cautioned her
father along these lines:  “even 5 percent failure rate, just don’t go for it. 
What if you do not have improvement?  What if you have complications?”

[148]     Mr. Shen
recounted that during this discussion his father-in-law announced he had six written
questions that he wished to ask of Dr. Ross before the surgery.  Mr. Shen
did not share his wife’s opposition to Mr. Chen undergoing the surgery.  He
testified that he “pushed Mr. Chen a little bit along the thinking” during
the discussion.  Mr. Shen told his father-in-law that if he wanted the
surgery he should not worry about his questions, and should instead trust Dr. Ross
because he was a well-established specialist, and had “promised” the procedure
was merely routine and that his eye condition would improve.  In the end, Mr. Chen
decided not to pursue his questions with Dr. Ross.

[149]     In order
to accommodate a patient from out of town or other emergency, Dr. Ross cancelled
Mr. Chen’s surgery slated for February 1 on short notice, and
rescheduled it for the next day.  There was no evidence that in the intervening
period Mr. Chen revived his concerns about the operation or invited
further discussion about whether he ought to proceed.  He had decided to go
ahead.

·       Membrane
Surgery – February 2, 2000

[150]     On February 2,
2000, Mr. Chen had the Membrane Surgery under a general anesthetic at
Vancouver General Hospital.  Dr. Ross made an unexpected finding when the
membrane was lifted during the operation.  The blood vessels in Mr. Chen’s
left eye were occluded and a possible old branch vein occlusion, meaning a stroke
in the eye, was detected.  That signalled to Dr. Ross that Mr. Chen
had a very ischemic eye – that is, a lack or absence of blood.  Dr. Ross
testified that, in addition to having the membrane, which is a structural
problem, Mr. Chen had basic vascular compromise in his left eye in the
form of occlusion and sheathing of the blood vessels, indicating that Mr. Chen
was a vasculopath.  He explained that the term “vasculopath” refers to a person
who suffers from multiple organ vascular abnormalities, which is not uncommon in
individuals with diabetes, like Mr. Chen.

[151]     During the
Membrane Surgery, Dr. Ross used an endolaser probe to rectify the vascular
obstructions in Mr. Chen’s left eye.  The post-operative report dictated
by Dr. Stockl on the day of the operation summarized the steps of the Membrane
Surgery in considerable detail, including the reason for and use of the endolaser.

[152]     Mr. Chen
remained in hospital overnight.  The next morning, he was examined by Dr. Stockl
and was discharged later that day.  Dr. Stockl charted that Mr. Chen
had no complaints but also noted a “language barrier”.  Dr. Ross gave
detailed evidence about the automated monitoring of Mr. Chen’s eye
pressure while he underwent the procedure.  There was no evidence whatsoever of
any problem in controlling Mr. Chen’s IOPs during the Membrane Surgery.  Dr. Ross’s
evidence that the procedure was successful and that there were no
intraoperative complications was amply supported by several notations in the
post-operative report prepared by Dr. Stock and by the whole of the
evidence that I accept.

[153]     One of Mr. Chen’s
allegations is that, while in hospital after the Membrane Surgery, he had fared
very poorly and was in extreme pain and vomited.  His initial theory appeared
to have been that shortly after the Membrane Surgery and before his discharge,
he suffered symptoms consistent with an acute onset of closed angle glaucoma
that went undiagnosed and untreated by Dr. Ross and caused his blindness. 
In attempting to develop an evidentiary foothold to support this theory, Ms. Chen
and Ms. Sood respectively cross-examined the defendants and questioned the
medical experts at length in relation to Mr. Chen’s post-operative
symptoms and the care he received in respect of them.  Even putting to the side
Dr. Ross’s testimony by which he forcefully refuted Mr. Chen’s
hypothesis, the combined evidence of the medical experts, among them Mr. Chen’s
own expert, Dr. Frederick Mikelberg, discredited this theory.

[154]     In closing
submissions, it became apparent that Mr. Chen had abandoned this line of
attack and instead was purporting to rely on such evidence to establish that,
after and in consequence of the Membrane Surgery, he suffered extreme pain and
vomiting which are to be taken into account in the assessment of his non-pecuniary
damages.

·       Event
on February 5, 2000 and its Aftermath

[155]     On February 5,
2000, Mr. Chen suffered a sudden and dramatic loss of vision in his left
eye while he was out for a walk.

[156]     Dr. Stockl
saw Mr. Chen at the eye clinic at the Vancouver General Hospital on the
morning of February 8, 2000.  Mr. Chen’s IOPs were elevated and the visual
acuity in his left eye was extremely poor, being “count fingers at three feet”. 
Mr. Chen had effectively become legally blind in his left eye.  Dr. Stockl
did not record a definitive diagnosis of the problem.  Instead, in his notes he
queried optic neuropathy, old ischemic optic neuropathy, glaucoma, and cystoid
macular edema.

[157]     Dr. Ross
also examined Mr. Chen that day, in the company of Mr. Shen, and
immediately launched into a series of investigations to assist in ascertaining
what had happened.  He requisitioned a sedimentation rate blood test to rule
out temporal arteritis, which causes ischemic optic neuropathy that can lead to
sudden bilateral blindness in older people.  It came back normal.  As well, he
ordered a CT scan of Mr. Chen’s head to determine whether he had a blood
clot that caused him to have a stroke.  The CT results were also unremarkable.

[158]     Dr. Ross
also ordered an automated visual field test.  It revealed that Mr. Chen
had severely constricted visual fields of both his eyes.  He arranged a second
fluorescein angiogram which reported that Mr. Chen had increased C/D
ratios suggestive of glaucomatous optic neuropathy, and that there was
compelling evidence of acute AION on the left.  The medical evidence
established that the acronym AION stands for “anterior ischemic optic
neuropathy” which refers to damage to the anterior segment of the optic nerve
caused by insufficient blood flow or the absence of blood flow.

[159]     Dr. Ross
saw Mr. Chen in follow-up on February 11.  At that stage, Mr. Chen’s
IOP was 22.  Dr. Ross prescribed medication to lower it.  At their next
appointment three days later, Dr. Ross made referrals to Dr. Duncan
Anderson, a neuro-ophthalmologist, and Dr. Frederick Mikelberg, a glaucoma
subspecialist.

[160]     Dr. Ross
wrote a follow-up letter to Dr. Lee dated February 23, 2000.  That
letter was not in evidence.  About one week later, Dr. Ross’s receptionist
faxed a replacement letter from Dr. Ross’s office to Dr. Lee.  The
fax cover sheet instructed Dr. Lee’s office to disregard Dr. Ross’s
previous letter and keep the freshly faxed version on file.  The receptionist
did not specifically recall sending this particular fax to Dr. Lee’s
office.  However, she testified that it was relatively common for her to send a
substitute page or an entire replacement letter to correct a typographical
error or medical terminology or to make some other small change.

[161]     In the
replacement letter, Dr. Ross outlined his involvement in Mr. Chen’s
care before the Membrane Surgery and the steps taken thereafter to diagnose and
treat Mr. Chen’s loss of vision.  In that letter, he recited the risks and
benefits that he said were disclosed to Mr. Chen and Mr. Shen before
the procedure.  They were consistent with the nature and chances of the risks
and benefits recorded by Dr. Ross in his chart on January 26, 2000.  The
letter also informed Dr. Lee that Mr. Chen had been referred to Drs. Anderson
and Mikelberg for valuation.

[162]     I
appreciate that, in the circumstances, Mr. Chen may harbour suspicions
about the reasons for and propriety of Dr. Ross’s office substituting this
correspondence to Dr. Lee.  On the evidence, however, I find nothing
concerning about the fact that the February 23, 2000 letter in evidence
had replaced an earlier version that was not in evidence, or that the
replacement letter purported to confirm to Dr. Lee the disclosure made to Mr. Chen
of the risks and benefits in having the Membrane Surgery.

[163]     Dr. Ross
testified that although the results of Mr. Chen’s visual fields were
consistent with low/normal tension glaucoma, he did not consider Mr. Chen’s
situation to be a truly glaucomatous “pressure problem”.  Nor did he think that
Mr. Chen had AION, or generalized ischemic optic neuropathy, explaining
that such a condition is indicated by inflammation of the nervous system of the
eye, which had been ruled out by the sedimentation test.

[164]     In
cross-examination, Dr. Ross was asked directly whether he knew what caused
Mr. Chen to lose his sight after the Membrane Surgery and, if he did, to
please explain his thinking.  Dr. Ross answered that he did know.  He said
that as a vasculopath, Mr. Chen’s vascular health was compromised and his
eye was severely ischemic because of an occlusion or obstruction of the tiny
vessels of his optic nerve.

[165]     Dr. Ross
explained that there is a spectrum in medicine of what may be classified as
AION or ischemic optic neuropathy on the one hand, and as a microinfarction of
the optic nerve on the other.  He categorized the loss of Mr. Chen’s sight
on the third day after the Membrane Surgery as an ischemic microinfarction of Mr. Chen’s
optic nerve.  Expressed in lay terms, Dr. Ross said Mr. Chen had
suffered multiple mini-strokes in his optic nerve that caused his sudden and
profound vision loss.  He elaborated that those mini-strokes were unrelated to
the Membrane Surgery and were the same condition that eventually brought about
the loss of vision in Mr. Chen’s right eye.  Dr. Ross remarked that the
vascular event that had occurred with Mr. Chen’s eye on about
February 5, 2000 had nothing whatsoever to do with his IOPs.

[166]     In response
to further cross-examination, Dr. Ross testified that there are no
symptoms of this kind of vascular problem until a patient suddenly loses his or
her sight.  According to him, the microinfarction of Mr. Chen’s optic
nerve three days post-operatively could not have been expected or prevented and
there was no evidence that contradicted his testimony on that point.  Dr. Ross believed
that Mr. Chen would have suffered his dramatic vision loss whether or not
he had undergone the Membrane Surgery.

[167]     Dr. Ross
elaborated that Mr. Chen went on to develop a very unusual condition in
his left eye called neovascular glaucoma, where the multiple obstructed blood
vessels in the optic nerve cause the emergence of new blood vessels.  It
happens only where the eye is extremely ischemic and, according to Dr. Ross,
Mr. Chen would have developed his condition even if he had not had the
Membrane Surgery.

·       Dr. Anderson
Consult – February 17, 2000

[168]     Dr. Ross
made an urgent telephone referral to Dr. Anderson explaining “the whole story”
and Dr. Anderson took cryptic notes of their conversation.  Even though Dr. Ross
had reached his own conclusions about the reason for the deterioration of Mr. Chen’s
sight after the Membrane Surgery, he wanted to know Dr. Anderson’s view of
what had occurred.  Dr. Anderson testified as a witness in Mr. Chen’s
case, but was not called to give expert opinion evidence.

[169]     Dr. Anderson
examined Mr. Chen at the St. Paul’s eye clinic on February 17, 2000. 
Mr. Shen attended and interpreted.  Mr. Chen’s dilated fundi examination
showed a C/D ratio of 0.9 in each eye and high IOP in both eyes.  The optic
nerve showed severe cupping which Dr. Anderson felt indicated glaucoma.

[170]     Dr. Anderson
wanted to know whether Mr. Chen had been in “terrible pain” within the
first few days after surgery because that could have been evidence of a sudden
rise in his IOPs, which, in turn, could have worsened the cupping and thereby caused
the glaucoma to advance within mere days.  At trial, Dr. Anderson was
clear that such a chain of events was not the “story” reported to him by Mr. Chen,
and that Mr. Chen had denied having experienced severe post-operative
pain.  I accept his evidence.  In the absence of such post-operative symptoms,
Dr. Anderson was “at a loss” to explain Mr. Chen’s sudden visual decline
following the Membrane Surgery.  He told Mr. Chen and Mr. Shen that
he thought the loss of vision was the natural progression of severe advanced glaucoma.

[171]     In his
consult to Dr. Ross, Dr. Anderson wrote that he did not detect evidence
of ischemic optic neuropathy and believed that Mr. Chen’s present visual field
defects were compatible with advanced glaucomatous optic neuropathy.  However,
he considered it prudent to arrange for another visual field test because he
noticed that the technician who had conducted the test on February 9 was
concerned that they were not accurate.  He told Mr. Chen that he wanted to
have the tests redone as he was concerned they were not sufficiently reliable. 
Mr. Chen did not return for that subsequent testing.

[172]     Dr. Anderson
endorsed Dr. Ross’s urgent referral of Mr. Chen to Dr. Mikelberg
and copied his consult letter to both Dr. Lee and Dr. Mikelberg.

[173]     Although Ms. Sood
acknowledged that Dr. Anderson’s evidence had not been tendered as opinion
evidence at trial, her closing submissions on the matter of causation placed
reliance on Dr. Anderson’s testimony for that very purpose.

[174]      In a
related vein, I would also mention that in cross-examination Dr. Anderson
admitted that he was not sure whether at the time of his consult he was aware
that Mr. Chen was a vasculopath.  He agreed that if Mr. Chen was a
vasculopath, the microvessels within his optic nerve, which usually cannot be seen,
could have occluded after, and independently from, the Membrane Surgery and
caused his profound loss of vision.  In that sense, he supported Dr. Ross’s
understanding of what had happened to Mr. Chen.  As defence counsel
readily conceded in argument, the evidence elicited on this point was clearly
opinion evidence and neither it nor any other opinion offered by Dr. Anderson
are admissible.

·       Dr. Mikelberg
Consult – February 22, 2000

[175]     Dr. Mikelberg
first assessed Mr. Chen on February 22, 2000.  He was called as an
expert witness by Mr. Chen.

[176]     In his
consult letter to Dr. Ross, copied to Dr. Lee, Dr. Mikelberg stated
that Mr. Chen’s visual field and the appearance of his optic disc were
consistent with glaucoma-related optic neuropathy.  His diagnosis was “possible
normal pressure glaucoma”.  However, and this point is important, he went on to
elaborate that Mr. Chen’s diabetes and the appearance of the arterioles
indicated there was significant vasculopathy, which he thought may be a major
factor in the pathology of Mr. Chen’s optic disc.

[177]     Dr. Mikelberg
was not convinced that any of the disease process of Mr. Chen’s optic
nerve was related to his IOP and proposed that his IOP medications be
discontinued sequentially.

·       Dr. Maberley
Consult – March 16, 2000

[178]     Dr. Sammy
Lee referred Mr. Chen to Dr. Maberley, a retinal subspecialist, for a
second opinion.  Dr. Maberley was called by Mr. Chen to give expert
opinion evidence at trial.

[179]     On March 16,
2000, Dr. Maberley assessed Mr. Chen whose other daughter (not Ms. Chen)
also attended and acted as the interpreter.  He found it difficult to sort out Mr. Chen’s
past ocular history because the daughter knew relatively little about it.  Dr. Maberley
testified that through his daughter, Mr. Chen advised that he was not aware
of any peripheral vision loss prior to his cataract surgery or before he
underwent the Membrane Surgery.  At trial, Dr. Maberley expressed some reservation
about the language barrier, even with the daughter interpreting.

[180]     Dr. Maberley
assessed Mr. Chen’s C/D ratio as 0.9 and observed that his optic nerve was
quite pale.  His IOPs fell within the normal range.  A fluorescein angiogram was
arranged and the results were reviewed with Mr. Chen at their next and
last appointment.

[181]     Dr. Maberley
believed that by the time he saw Mr. Chen clinically, he displayed
evidence of chronic open angle glaucoma.  He also noted that there may have
very well been an element of ischemia secondary to his diabetes and vascular
disease.  He remarked, in particular, upon the significant element of a retinal
vascular insufficiency affecting Mr. Chen’s left eye which, he stated, may
very well have contributed to the dramatic drop in his peripheral field
superimposed upon the glaucomatous changes.

[182]     Dr. Maberley
felt there was nothing further that could be done from a therapeutic standpoint
with respect to improving Mr. Chen’s vision.  He suggested that it may be
worthwhile for Mr. Chen to obtain an ultrasound assessment of his carotid
arteries in an attempt to evaluate his overall cerebrovascular flow pattern. 
There was no evidence that such an assessment was performed.

·       Subsequent
Entry to Dr. Stockl’s chart

[183]     As
mentioned earlier, Dr. Stockl had made the following entry to his chart on
January 26, 2000: “Plan.  Explained risks/benefit of surgery.  Pt accepts”. 
At that time, he did not particularize the nature of the risks and benefits or
the chances of their occurrence.

[184]     Dr. Ross
testified that he had never before encountered a case such as this where a
patient had irrevocably lost the use of his eye from a membrane removal, and recognized
there was a potential for litigation.  With this in his mind, he asked Dr. Stockl
to complete his chart for January 26, 2000, by recording what he
remembered advising Mr. Chen that day in Dr. Ross’s presence concerning
the risks and benefits of the Membrane Surgery.  Dr. Stockl made the
following entry to his chart:

2-3%  risk of complication –
RD – infection – loss of eye.

60%   chance of 2 lines
improvement

20%    “    
“   1‑line

10%    no improvement.

[185]     When Dr. Stockl
completed that entry, both he and Dr. Ross signed their names next to it
but overlooked inserting the date.  Dr. Ross testified that his signature
denoted his confirmation that Dr. Stockl’s addition accurately captured
his recollection of what Dr. Stockl had advised Mr. Chen at the January 26
session.

[186]     Dr. Ross
was not able to pinpoint when Dr. Stockl made the entry other than to say
it would have been after February 28, 2000 and before Dr. Stockl’s
fellowship ended in June of that year.

[187]     I accept Dr. Ross’s
credible and unchallenged testimony that he did not instruct nor suggest to Dr. Stockl
what to add to the chart, that Dr. Stockl was the sole author of the
foregoing entry, that it was all that was added, and that neither he nor Dr. Stockl
deleted or altered anything that had been previously charted.

·       Dr. Lee’s
Treatment of Mr. Chen after the Membrane Surgery

[188]     Mr. Chen
was seen by both Dr. Lee and Dr. Anderson at different times on February 17,
2000.  Unlike Dr. Anderson, Dr. Lee found Mr. Chen’s IOP to be
in the normal range in both eyes that day.  In closing argument, Ms. Sood
suggested that the fact that Dr. Lee’s measurements of Mr. Chen’s IOP
did not correspond to those taken by Dr. Anderson the same day (or to Dr. Chang’s
measurements taken some two years earlier) implied a general carelessness or
inability on Dr. Lee’s part in accurately recording Mr. Chen’s IOP throughout
the course of his treatment of Mr. Chen.

[189]     The
evidence was clear that an individual’s IOP fluctuates throughout the day.  As
well, I accept Dr. Lee’s evidence that there were many acceptable ways
by which to measure a patient’s IOP and that it was unclear whether he and Dr. Anderson
had used the same method.  There was no cogent development of the evidence to
suggest that Dr. Lee inaccurately measured Mr. Chen’s IOP then, or at
any time.  I found the entire line of attack to be ill-conceived.

[190]     At the February 17
appointment, Dr. Lee saw no evidence of chronic glaucoma and noted that in
his chart.  He did not share Dr. Anderson’s impression that Mr. Chen
suffered from severe glaucomatous optic neuropathy.  Dr. Lee testified
that a growing body of medical thinking was to the effect that low/normal
tension glaucoma was one and the same as multiple attacks of AION and that he
believed the latter condition explained Mr. Chen’s profound vision loss on
the third day post-operative.  In support of his diagnosis, he pointed to the
fact that, despite receiving state of the art treatment for his glaucoma from Dr. Mikelberg
after the Membrane Surgery, the vision in Mr. Chen’s right eye continued
to decline until he eventually became legally blind in 2006 or thereabouts.

[191]     It was Dr. Lee’s
understanding, which I consider both accurate and reasonably held in the
circumstances, that Dr. Ross had taken the lead in investigating the cause
of the vision loss and had orchestrated the involvement of other appropriate
subspecialists, including Dr. Mikelberg, in Mr. Chen’s treatment,
such that Dr. Lee was no longer acting as Mr. Chen’s primary care
physician.  Although he still examined Mr. Chen’s eyes and, for Mr. Chen’s
convenience, renewed medications prescribed by Dr. Mikelberg during these
visits, he likened his new role to that of a “quarterback”, working with Dr. Ross
and the other subspecialists largely to interpret their findings to Mr. Chen,
and answer Mr. Chen’s many questions along the way.

[192]     Ms. Sood
contended that Dr. Lee had failed to deliver an adequate level of care to Mr. Chen
after the Membrane Surgery.  The thrust of her argument appeared to be that Dr. Lee
had been dilatory in waiting approximately two-and-a-half weeks to refer Mr. Chen
to Dr. Mikelberg for treatment.  She further asserted that Dr. Lee
ought to have accepted that Mr. Chen had glaucoma and charted that
diagnosis, but had neglected to do so because he was acting with a defensive demeanour
and, in his mind, was trying to distance himself from the whole ordeal.  This
conduct, asserts Ms. Sood, amounted to a breach of the standard of care expected
of Dr. Lee.

[193]     In my
assessment, Ms. Sood’s submissions were constructed on an unbalanced interpretation
of the facts and, to some extent, on pure conjecture.  They lack cogency in
fact and in law and I dismiss them out of hand.

Expert
Medical Evidence

·       Dr. Frederick
Mikelberg

[194]     Dr. Mikelberg
is recognized as the leading glaucoma specialist in the province.  He is a professor
and head of the department of ophthalmology at the University of British
Columbia and the department head at the Vancouver General Hospital.  His practice
is limited to the diagnosis and treatment of patients with glaucoma and, accordingly,
only sees patients who have or are suspected of having glaucoma.

[195]     In
response to questioning concerning the mode of referral from other physicians, Dr. Mikelberg
testified that when a patient is referred to him by telephone, it is customary,
although not mandatory, to subsequently receive a consultation letter from the
referring ophthalmologist outlining the reasons for the referral.  By no
stretch did he suggest that a written referral was the expected standard.

[196]     Dr. Mikelberg
testified about the risk factors for glaucoma and the circumstances in which he
thought a visual field test ought to be ordered.  He clarified that the symptom
of blurred vision is not suspicious for glaucoma and that modern studies have
shown that diabetes is not a risk factor either.  Dr. Mikelberg  stated
that, on the other hand, being age 65 or older does constitute a risk
factor.  He was careful to say that, even so, the standard of care is not to routinely
order visual fields on all persons who are over age 65. He held the opinion that the key basis upon
which to order a visual field test was the optic nerve findings and confirmed that
it is a standard expectation of an ophthalmologist to be able to assess the
optic nerve.

[197]     Although Dr. Mikelberg
acknowledged that a large C/D ratio is not invariably indicative of glaucoma,
he nonetheless considered it to be very suspicious for glaucoma.  He opined
that, therefore, where a large C/D ratio is present, the next step is for the
patient to have a visual field test to confirm or rule out the diagnosis.  He
testified that a C/D ratio over “0.3, 0.4 or 0.5” is a factor to alert a
physician to do a visual field test, and that it would be the standard of care
for an ophthalmologist to order such a test on a patient with a large (although
normal) C/D ratio of 0.7.  Dr. Mikelberg believed that, depending on the
circumstances, an individual with a large C/D ratio should usually have a
visual field test every six to twelve months.

[198]     Turning
his mind to Mr. Chen’s case, Dr. Mikelberg opined that testing him for
glaucoma was probably indicated due to his large C/D ratio noted in 1998 and
that Dr. Lee should probably have ordered a visual field test when those
ratios were discovered.  At trial, he confirmed that he was referring to the
findings of Mr. Chen’s C/D ratio made by Drs. Thomas and Chang in February 1998. 
He could not recall whether, for the purposes of his opinion, he had assumed
that Dr. Lee had been apprised of those findings.  I have concluded
that Dr. Lee was not aware of them.

[199]     According
to Dr. Mikelberg, it is standard procedure to record the patient’s IOP and
the appearance of the C/D ratio as part of a regular eye examination.  He did
not specify how the C/D ratio was to be recorded; that is, whether the
description of it as “normal” would suffice or whether it was mandatory to
express the ratio numerically.  Nor was he specific that such conduct was the standard
for general ophthalmologists during the period February 1996 through January 2000.

[200]     In his written
opinion dated December 4, 2006, Dr. Mikelberg answered specific
questions posed on Mr. Chen’s behalf.  In answer to whether there was a
duty on Dr. Lee and/or Dr. Ross to ask Mr. Chen more specific
questions about the nature of his vision difficulties in order to rule out low/normal
tension glaucoma before the Membrane Surgery, he answered that asking specific
questions to determine whether Mr. Chen’s visual difficulties corresponded
to peripheral or central vision problems prior to the Membrane Surgery was
probably not indicated because Mr. Chen’s central vision loss was
apparent.  In this context, he reiterated his view that Dr. Lee should
probably have ordered a visual field test when Mr. Chen’s large C/D ratio
was discovered.

[201]     Dr. Mikelberg
was very clear that the presence of glaucoma would not have affected the
decision to proceed with the Membrane Surgery, which had the objective of
improving Mr. Chen’s central vision.  He elaborated that had Dr. Ross
been aware of Mr. Chen’s pre-existing glaucoma, he would most likely have
recommended the Membrane Surgery in any event because the membrane was the
source of Mr. Chen’s decreased pre-operative central vision.  Dr. Mikelberg
disagreed with Dr. Ross’s positive characterization of Mr. Chen’s
optic nerve and the neuroretinal rim prior to the Membrane Surgery.  Yet, at no
time did he opine that the standard of care expected of a retinal subspecialist
standing in Dr. Ross’s shoes would be to order a visual field test or
conduct any other type of investigation to rule out glaucoma prior to performing
the procedure.

[202]      Dr. Mikelberg
was also asked to address the following question:

Given that the plaintiff
complained about: (1) falling when crossing the road; (2) being able to read
but unable to see generally – should the possibility of the existence of
low-tension glaucoma been considered followed by testing to determine whether
this condition existed prior to the [Membrane Surgery]?

His response was that Mr. Chen’s complaints in this
regard were non-specific and would probably not have led to further testing.

[203]     Dr. Mikelberg’s
essential opinion as to the etiology of Mr. Chen’s dramatic loss of vision
remained unchanged from his initial impression set out in his consult to Dr. Ross
nearly seven years earlier.  In his view, Mr. Chen had both retinal
vascular disease and glaucoma since at least 1998.  He explained that the
glaucoma was the source of Mr. Chen’s peripheral vision loss and that,
since at least 1998, the epiretinal membrane contributed to his central vision
deficit.  Dr. Mikelberg opined that Mr. Chen’s sudden vision loss in February
2000 was due either to his retinal vascular disease or to the loss of his
central vision brought about as the end stage of advanced glaucoma.  Stating it
more summarily at trial, he testified that Mr. Chen lost his vision either
from his vascular disease or from further progression of the glaucoma damage. 
In his opinion, neither of these causes were directly related to the Membrane
Surgery.  He postulated there could be an indirect relationship in the sense
that, in the case of advanced glaucomatous optic neuropathy, the optic nerve
becomes very weak and tenuous, either from intraocular pressure or vascular
insufficiency, and the stress from the procedure could cause further damage or result
in a dramatic loss of central vision.

[204]     Dr. Mikelberg
was questioned about whether Mr. Chen may have suffered acute closed angle
glaucoma shortly after the Membrane Surgery.  As noted previously, this line of
questioning was related to Mr. Chen’s hypothesis that this condition manifested
post-operatively and was the cause of his vision loss.  Dr. Mikelberg
testified that an individual must be predisposed to that condition by having a
narrow drain angle, and that Mr. Chen did not have the requisite narrow
angles at the relevant time.  Consequently, he thought it unlikely that Mr. Chen
had an attack of acute angle closure post-operatively.

[205]     Dr. Mikelberg
agreed that the early stages of open angle glaucoma can be treated with
medication, which may result in the patient maintaining his or her field of
vision for a longer period of time.  His answer explicitly addressed the treatment
of early open angle glaucoma, and it was not clarified whether he was also
speaking to the treatment of advanced open angle or low/normal tension
glaucoma.

·       Dr. Alan
Maberley

[206]     Dr. Maberley
is a senior and well-respected retinal subspecialist with extensive credentials. 
He is a vitreoretinal consultant and surgeon and member of the attending
surgical and consulting staff of Vancouver Coastal Health and the Children’s
Hospital of British Columbia.  Since 1972, he has been on faculty of the
Department of Ophthalmology at the University of British Columbia and has
taught ophthalmology residents.  He is a longstanding member of many
professional associations.

[207]     At the
outset of his written opinion dated March 15, 2011, Dr. Maberley
expressed the caveat that he was at “a severe disadvantage” because he had only
three documents to review in compiling his report.  They consisted of the October 1998
Angiogram (which was dictated by his Fellow and reviewed by Dr. Maberley
at the time), the 1999 Angiogram report, and his consult notes of March 16,
2000, including the fluorescein angiogram that he arranged for Mr. Chen. 
He also described himself as being “severely handicapped” in terms of assessing
Mr. Chen, due to the fact that he did not see him pre-operatively and only
examined him after he had lost all use of vision in his left eye.

[208]     Dr. Maberley
confirmed that he would have had the colour photographs in hand when he
collaborated in the preparation of the October 1998 Angiogram.  In
reviewing enlarged colour copies of those photographs at trial, he agreed they were
the same as the photographs before him when the October 1998 Angiogram
report was composed and were comparable to the smaller images in the trial
exhibits.  He noted that the main pathology appeared to be the membrane in Mr. Chen’s
left eye.  He further remarked that the right optic nerve appeared to be
somewhat pale but the neuroretinal rim was “probably okay”.  Dr. Maberley
testified that those photographs showed cupping of the nerve in the left eye that
he variously characterized as being “about 0.7” and “at least” 0.7.  None of
those observations had been included in the October 1998 Angiogram report;
it had described the appearance of the optic disc in Mr. Chen’s left eye
as normal.

[209]     Based on
the 1999 Angiogram, Dr. Maberley could see that Mr. Chen’s membrane
had definitely progressed.  He confirmed that the 1999 Angiogram report said
nothing about the appearance of Mr. Chen’s optic nerve.  He explained the
reason was that the purpose of a fluorescein angiogram is to evaluate retinal
pathology and not to assess and comment on the optic nerve.  Dr. Maberley
testified that if an angiogram raised questions about the optic nerve, it would
fall to the patient’s general ophthalmologist, and not to the retinal
subspecialist who requested the angiogram, to conduct any investigations.  He
commented further that, because the optic nerve will always be part of the
angiogram, the ophthalmologist reviewing it may choose to comment about it.  He
continued that if something about the optic nerve “stuck out”, it would be
mentioned, but that a definitive diagnosis of the condition of the optic nerve
cannot properly be made on the basis of the results of an angiogram test and
related photographs.

[210]     In
reviewing the 1999 Angiogram photographs, Dr. Maberley observed cupping of
Mr. Chen’s left optic nerve; however, he was not able to ascertain the
degree of cupping without doing a stereoscopic analysis.  He also remarked that
the optic nerve looked quite pale in one of the photographs.  In cross-examination,
Dr. Maberley confirmed that what appeared to be pallor or paleness of Mr. Chen’s
optic nerve in the copies of the sets of photographs may have been due to the
exposure of the film itself.  Additionally, he was careful to assert that,
since the photographs did not provide a full view of Mr. Chen’s optic
nerve, it was not possible to use them alone to provide a reliable diagnosis of
the optic nerve.

[211]     Dr. Maberley
emphasized that in order to properly evaluate the optic nerve, a physical
examination was essential.  On that reasoning, he stated that Dr. Ross was
in the best position to assess the health of Mr. Chen’s optic nerves just
prior to the Membrane Surgery because it was he who had physically examined
them.

[212]     Dr. Maberley
thought that the changes to Mr. Chen’s optic nerve had probably been going
on in both eyes for a matter of months before he saw him on March 16, 2000,
or could have happened slowly over a period of years.  He suspected that Mr. Chen’s
visual fields were abnormal prior to his cataract surgery and the Membrane
Surgery.

[213]     In
discussing when a visual field test is appropriate, Dr. Maberley confirmed
that a large C/D ratio is not conclusive of glaucoma and endorsed the school of
thought that the physician has to form a certain amount of suspicion based on
the clinical examination of the optic nerve before ordering such a test.  He
characterized as a “problem” the fact that no visual field test was performed
on Mr. Chen, even though he had been complaining of peripheral vision
loss.  However, Dr. Maberley did not have the benefit of knowing that Dr. Lee
had conducted a clinical confrontation field test in October 1997 and had detected
no abnormality in Mr. Chen’s peripheral vision at that time.  Moreover, as
will be explained in greater depth in the discussion of the standard of care, Dr. Maberley’s
impression that Mr. Chen had been expressing complaints of peripheral
vision deficit before the Membrane Surgery was mistaken.

[214]     In any
case, Dr. Maberley was unable to comment as to whether, if he were Dr. Lee,
he would have considered doing visual fields on Mr. Chen before the
Membrane Surgery to rule out the possibility of glaucoma, except to say he
would have ordered them based on the appearance of Mr. Chen’s optic nerves
when he saw him on March 16, 2000, and “probably sooner”.  He did not
expand upon how much “sooner” he may have done so.  As well, he declined to
comment about whether Dr. Lee’s treatment of Mr. Chen was in
accordance with the prevailing standard of care because he saw him “after the
fact”.

[215]     Dr. Maberley’s
opinion concerning the reasons for Mr. Chen’s dramatic loss of sight had
not changed from the impression he reported in his initial consult letter, other
than adding to his opinion that Mr. Chen’s glaucoma was possibly of the
low/normal tension variety.  In sum, his opinion was that Mr. Chen had
evidence of the end stage of glaucoma and there was a significant element of
retinal vascular insufficiency affecting his left eye which could have
contributed to the dramatic drop in peripheral field superimposed upon his
glaucomatous changes.

[216]     Dr. Maberley
testified that the Membrane Surgery may have contributed to Mr. Chen’s
vision loss; however, he did not know to what extent.  By no stretch did he opine
that it was more likely than not that the Membrane Surgery caused or
contributed to Mr. Chen’s vision loss.  His ultimate opinion on causation
was couched in highly qualified terms, namely if Mr. Chen had somewhat
elevated IOPs in his left eye prior to the Membrane Surgery, and if his
optic nerves were susceptible, and if there were any increase in his
IOPs post-surgery, then that might be enough to further a loss of his
peripheral visual field and also of his central vision.  The evidence
demonstrates that, shortly before the Membrane Surgery, Drs. Ross and Stockl
assessed Mr. Chen’s IOPs within the normal range, and that throughout the
material period, none of the ophthalmologists who saw him recorded elevated
IOPs, other than the isolated instance of Dr. Chang who found his IOPs to
be 23 and 24 almost two years earlier.

[217]     Dr. Maberley
was the only retinal subspecialist called by Mr. Chen to give expert
evidence.  I consider it notable that the only substantive comment he made with
respect to Dr. Ross’s standard of care is found in his initial consult,
where he described the Membrane Surgery as “appropriate” surgery.

·       Dr. Aron
Goldberg

[218]     Dr. Goldberg
is an experienced general ophthalmologist who gave expert opinion evidence on
behalf of the defendants.  He completed his residency in ophthalmology in 1978
and the next year was accepted as a retinal Fellow at a hospital connected with
the University of Toronto.  He has been a consulting ophthalmologist at the
Lion’s Gate Hospital in North Vancouver and has run his own private practice in
that vicinity for approximately 32 years.  Dr. Goldberg is a former
head of the division of ophthalmology and former Chief of Surgery of Lion’s Gate
Hospital, and for ten years was the medical director of the North Mount Eye
Surgical Centre on the North Shore.  Many of his patients require cataract
surgery or have glaucoma or suspected glaucoma, and many are diabetics referred
to him for general eye examinations.

[219]     Dr. Goldberg
testified there is no standard way for a general ophthalmologist to go about
making a referral to a specialist; some send letters and others refer by
phone.  He explained that when a general ophthalmologist refers a patient to a
retinal subspecialist, it is in respect of a retinal issue.  In all his years
of experience, he could not recall ever having received a consult letter from a
retinal subspecialist containing remarks about visual issues that were not
related to the retina, with the exception that some of them may have pointed
out an elevated IOP.  More to the point, no retinal subspecialist to whom he
had sent a patient had ever commented about indicators of glaucoma that had not
been previously diagnosed.

[220]     Dr. Goldberg’s
view was that, given the degree of central vision compromise experienced by Mr. Chen
on account of his epiretinal membrane, it was entirely appropriate for Dr. Lee
to refer him to Dr. Ross.

[221]     The
evidence established that the change in an individual’s C/D ratio is a relevant
factor in suspecting glaucoma.  One of Mr. Chen’s main complaints against Dr. Lee
is that he did not record Mr. Chen’s C/D ratio numerically so as to enable
him to track any changes to it over the course of time.  It was Dr. Goldberg’s
opinion that during the years in question a typical general ophthalmologist
would not have necessarily recorded the C/D ratio in the absence of a noted
abnormality, even in an annual eye examination.  He acknowledged that would
mean that a baseline ratio would not be established in the patient’s chart to
compare against future measurements for the purpose of ascertaining whether there
had been a change.  He elaborated that the standard practice of general
ophthalmologists has evolved since then and, at the present time, the C/D ratio
is either recorded numerically, by way of a diagram depicting the comparison or,
where the clinician has a degree of suspicion of glaucoma, by way of ocular
photography.

[222]     Dr. Goldberg
added that it is becoming increasingly more prevalent among general
ophthalmologists to have fluorescein angiograms with photographs taken in
instances where there is any suspicion for glaucoma.  This is mainly because
studies have shown there is variability in the subjective recording of C/D
ratios as between different observers, and also between the same observers on
different occasions.  For this reason, he was of the opinion that the
photographic evidence obtained by Dr. Lee in the form of the October 1998
Angiogram and the 1999 Angiogram was extremely useful in evaluating the health
of Mr. Chen’s optic discs.

[223]     Dr. Goldberg
readily agreed that it was standard practice to record the patient’s complaints
relating to vision on each appointment.  That said, in his view, after a patient
undergoes cataract surgery, an ophthalmologist would meet the expected standard
of care by charting as the reason for subsequent appointments words to the
effect “follow-up cataract surgery”, without much further in the way of particulars,
as Dr. Lee had done for several months following Mr. Chen’s cataract
removal.  Dr. Goldberg confirmed it was standard practice to record the
time of day that a patient’s IOP was assessed.

[224]     Dr. Goldberg
stated that the purpose of an annual eye examination is largely to assess the patient’s
central vision.  He agreed that visualizing the optic nerve using an
ophthalmoscope and measuring the patient’s visual acuity would typically be
encompassed in a complete eye examination.  In cross-examination, he agreed it
would be expected that an ophthalmologist would perform a full eye examination
on a patient who had undergone cataract surgery and had continued to have
problems with his vision and had not been seen by that ophthalmologist for a
year.

[225]     Notably, however,
Dr. Goldberg disagreed that checking a patient’s peripheral vision by use
of a confrontation visual field test or otherwise would ordinarily be carried
out as a routine component of an annual eye examination.  He elaborated that he
does not routinely perform confrontation visual fields on his patients and testified
that they are ordinarily administered only where an index of suspicion has been
established that indicated there may be a concern about the patient’s peripheral
vision.  The formulation of an index of suspicion depends on the presence or
absence of risk factors.  The risk factors would include a family history of
glaucoma; whether the patient is female or of a race that reports a higher
incidence of glaucoma; whether the patient is elderly, has symptoms suggestive
of a stroke or a transient ischemic attack or has high IOPs on clinical
examination; the presence of notching, which refers to the loss of the neuroretinal
rim in certain zones; evidence of hemorrhages of the optic disc and a deepening
of the optic cup.  Dr. Goldberg concurred with the testimony of the
defendants and Dr. Mikelberg that diabetics have no greater incidence for
the usual types of glaucoma.

[226]     Dr. Goldberg
had read Dr. Thomas’s records charting Mr. Chen’s complaint that
after undergoing the cataract surgery, his vision was no better and “can’t read
newspaper, falling at times when walking”.  The following hypothetical was posed
to him in cross-examination:

Q         I have another
scenario for you.  Again I will ask that you let me finish the hypothetical
facts before you give a response.  Let’s suppose you have a patient who is in
his late 60s and he has diabetes and he has complained of tripping and falling
because he is unable to see the curb when he is walking.  Now, my question is,
would it be the standard of practice to check the patient’s peripheral vision
at this point?

[227]     Dr. Goldberg
answered that while some ophthalmologists “might” do a quick confrontation
field test, it would not necessarily be the standard practice to examine the
patient’s peripheral vision in such circumstances.  His rationale was that
tripping and falling were non-specific medical complaints that occur with a
great variety of medical conditions, such as balance difficulties and
circulatory problems.  Dr. Mikelberg had opined along the same lines.  To
the extent that the tripping and falling related to a problem with vision, Dr. Goldberg
said it was far more likely to reflect a diminishment of central vision than a
problem with peripheral vision.  His uncontradicted testimony in cross-examination
was that the usual type of complaint one would get with a deficit of peripheral
vision, as opposed to central vision impairment, would be missing seeing things
that are off to one side or banging into things while walking, but not a complaint
of falling.

[228]     Dr. Goldberg
credibly dispelled the notion that Mr. Chen’s complaints of falling constituted
risk factors that contributed to an index of suspicion for glaucoma.  He noted
also that he had seen no comments in the records of the ophthalmologists about
the loss of Mr. Chen’s peripheral vision.

[229]     In
reviewing all of the information Dr. Lee had at hand and having regard to
the pertinent risk factors, Dr. Goldberg opined that an index of suspicion
would not have been established warranting a visual field test of Mr. Chen
in the applicable timeline.  He summarized his view on the matter in these
terms:

So it would have been useful in
hindsight to have ordered one [visual field] based on the subsequent clinical
course, but there is no way Dr. Lee could have known that things were
going to go in the direction that they did and, based on the information that
he had, I wouldn’t have ordered a visual field either.

[230]     In preparing
his expert report dated December 12, 2006, Dr. Goldberg had reviewed
a variety of documents but had primarily relied on the facts and assumptions
contained in the medical and hospital records and angiogram reports and not on the
facts alleged by Mr. Chen in his pleading or the evidence given at his
examination for discovery.  Mr. Chen’s counsel directed Dr. Goldberg’s
attention to the following three allegations taken from the Statement of Claim:

1.     My
daughter accompanied me to see Dr. Lee in October 1998 and asked Dr. Lee
whether or not I had the glaucoma problem and whether there was any impact
of my diabetic problem on my eye condition.

2.     In December 1999
I told Dr. Lee that I could only read newspapers from one angle.

3.     During the
first visit to see Dr. Ross I told him that I could not see
roads while walking and that I could only see the newspaper from one
angle.

[231]     Dr. Goldberg
testified that the first passage merely focused his attention on the question of
whether glaucoma could have been detected at an earlier stage, and did not
detract from his overall opinion that Dr. Lee had acted reasonably in the
face of all of the information he had at the time.  In relation to the second
and third extracts, Dr. Goldberg testified that he considered that information
to be consistent with the degree of disability that Mr. Chen was
experiencing from his other ocular problems, and not with a peripheral
abnormality linked to glaucoma.

[232]     In final
submissions, Mr. Chen’s counsel argued that because Mr. Chen’s
complaint to Dr. Lee about his peripheral vision before the Membrane
Surgery was not mentioned in Dr. Lee’s medical records, Dr. Goldberg
had not taken that into account as a fact and assumption.  Counsel clarified
that she was referring to the answers given by Mr. Chen to questions 94
and 95 at his examination for discovery, which form part of Mr. Chen’s
Discovery Testimony, as being disregarded by Dr. Goldberg.  However, Mr. Chen’s
answers to those questions do not amount to evidence of complaints to Dr. Lee
of problems with his peripheral vision.  Those portions of his Discovery Testimony
refer to tripping and falling, some of which, or possibly all, occurred before
his cataract surgery and which the preponderance of the medical evidence established
were related to central vision impairment and not to any peripheral vision
problems.

[233]     Preparatory
to his opinion, Dr. Goldberg projected and reviewed the original slides of
the photographs comprising the October 1998 and 1999 Angiograms, and subsequently
reviewed the full-size colour photographs made from those slides.  He did not
consider the quality of the photographs to be any better than the original
slides he viewed.  Based on those slides and the photographic images, Dr. Goldberg’s
impression was that Mr. Chen’s optic nerves had a good neuroretinal rim and
a normal appearing optic disc at the time when each of those angiographic
studies were done.  He explained that the neuroretinal rim is the pink rim of
nervous tissue and is one of the visible components of the optic nerve and
agreed that the determination of whether it has a normal appearance is a
subjective analysis.

[234]     The C/D
ratio of 0.7 reported in the 1999 Angiogram report accorded with Dr. Goldberg’s
assessment based on the photographs.  He would not expect a C/D ratio of that
degree to be associated with the extensive degree of field loss that Mr. Chen
exhibited after the Membrane Surgery, which he said was almost never seen on a
glaucomatous basis in the absence of a total cupping of the optic discs.  He
pointed out that such severe cupping was not noted by any of the practitioners
involved in Mr. Chen’s care before the Membrane Surgery.  Dr. Goldman
had never observed the extreme field loss as was experienced by Mr. Chen
after the Membrane Surgery in combination with the C/D ratios he had prior to
the operation, and described the situation as exceptionally rare.  In his view,
Mr. Chen’s severe post-surgical visual field loss could not have been
predicted from the pre-operative appearance of his optic discs.

[235]     Dr. Goldberg
explained that an optic nerve that is damaged by an impaired vascular system
can simply reach a “tipping point” that leads to a precipitous loss of vision, by
which he meant a severe visual loss within mere hours or days.  It was his
belief that this is what had happened with Mr. Chen after the Membrane
Surgery, and that his diffuse vascular disease was the most likely cause of the
dramatic vision loss in his left eye between December 1999 and shortly after
the Membrane Surgery.  However, he thought it unlikely that the Membrane
Surgery itself was the actual “tipping point” for two reasons:  first, because
the loss of vision in Mr. Chen’s left eye did not occur immediately at or after
the Membrane Surgery; and second, because of the very extensive visual loss he
subsequently suffered in his right eye.  He considered it to be in the realm of
speculation as to whether a thorough examination of Mr. Chen’s optic nerve
prior to the Membrane Surgery would have revealed such vascular changes.

[236]     Dr. Goldberg
opined that based on the clinical records and fluorescein angiogram studies,
there was nothing in the appearance of Mr. Chen’s optic discs that would
have been a contraindication for the Membrane Surgery and considered it entirely
acceptable for Dr. Lee to refer Mr. Chen to Dr. Ross for removal
of his epiretinal membrane.  That conclusion was universally held by the
medical experts.  He was unshaken in his opinion that Dr. Lee had paid appropriate
attention to the condition of Mr. Chen’s optic discs throughout and that
the examinations performed by Dr. Lee and his medical records met the
standard of care applicable at the time of a reasonable and competent general
ophthalmologist.

·       Dr. Kelvin
Finlay

[237]     In 1982, Dr. Finlay
completed his residency in ophthalmology and the following year finished a
clinical fellowship in retinal/vitreous surgery, both in connection with University
of British Columbia.  He has been a full-time retinal subspecialist for
approximately 30 years and was a long serving active staff member of Mount
St. Joseph’s Hospital.  Dr. Finlay is currently on staff of the
Burnaby General Hospital and formerly acted as its Chief of Surgery.  He was
called as an expert witness by the defendants and tendered two written reports
dated February 6, 2007, and October 5, 2007, respectively.

[238]     Dr. Finlay
performs many types of eye surgeries and believes he has probably done more epiretinal
membrane peels than any other kind of retinal operation.  He receives referrals
from ophthalmologists by telephone if there is a true emergency; otherwise, it
is his practice to request a referral letter.  He does not “deal with” the
referring letter – it is something that his staff requires in order to activate
the referral and book the appointment.  Dr. Finlay was never asked and did
not imply, much less say, that the referral practice he had implemented in his
office represented the standard expectation among retinal subspecialists now or
at the material time.

[239]     Dr. Finlay
testified that in a retinal subspecialty practice in British Columbia, a
patient is ordinarily referred for a specific retinal problem.  It is not
usually within the purview of the retinal specialist to administer a full eye
examination to cover all aspects of the patient’s ocular health.  It is his
evidence that, accordingly, Dr. Ross would have only been considering Mr. Chen’s
retinal issues that Dr. Lee asked him to address.

[240]     Dr. Finlay
also corroborated Dr. Ross’s evidence to the effect that retinal
subspecialists do not routinely request the records of the referring
ophthalmologist.  They requisition their own tests and make decisions based on
the tests that they have arranged or administered, and not on what might have
been done in the past.  He was adamant that a retinal subspecialist in British
Columbia would not rely on any old tests or studies unless new ones were not
available, and that general ophthalmologists understood that retinal
subspecialists managed their in-patients that way.  Accordingly, said Dr. Finlay,
Dr. Ross did not require Dr. Lee’s chart or any prior test results,
and there was no indication for him to perform tests other than the 2000 Angiogram. 
A fluorescein angiogram was the major investigation to be ordered for a retinal
problem and was considered to be the gold standard at the time.

[241]     Dr. Finlay
agreed that glaucoma is diagnosed on the basis of visual field change/loss in
combination with a change in the optic nerve.  For that reason, he agreed a
change in the patient’s C/D ratio, rather than the measurement of the C/D ratio
per se, was of significance.

[242]     Dr. Finlay
did not consider the photographs of the October 1998 Angiogram to indicate
glaucoma and testified that Mr. Chen’s C/D ratio at that time looked to be
healthy at about 0.5.  In reviewing the 1999 Angiogram photographs, he saw no
worrisome problems such as hemorrhaging of the optic nerve or major cupping in Mr. Chen’s
left eye.  Consistent with the assessments of Drs. Ross and Goldberg,
Dr. Finlay found that the optic nerve had a nice normal colour and looked
quite healthy in both sets of photographs.

[243]     As had the
defendants and Drs. Mikelberg and Goldberg, Dr. Finlay testified that the
presence of severe glaucoma was not contraindicated for a membrane peel.  He
would not caution a patient with that disease against going forward with the
procedure.  He said it would be the recommendation of any retinal subspecialist
that a patient undergo a membrane peel even where advanced glaucoma was
present.  In cases where Dr. Finlay is aware that the patient has
glaucoma, he assumes the general ophthalmologist is managing the disease.  If
he suspected that a patient had an undiagnosed disease process such as
glaucoma, he would send the patient back to the referring doctor to investigate
and would probably not order a visual field test himself.  I did not
understand Dr. Finlay to say that a retinal subspecialist would be expected
to have the referring physician undertake investigations for glaucoma before
proceeding with a surgical membrane removal; nor rule out glaucoma, whether by
ordering visual field tests or otherwise, on a patient before performing the
procedure.  In cross-examination, Dr. Finlay added that in instances where
he knew the patient had glaucoma, he would take that into account in terms of
his awareness of controlling that patient’s pressure during the procedure, but
nothing more than that.  There was no evidence that Mr. Chen’s IOPs were
not properly controlled or became elevated during the Membrane Surgery.

[244]     Dr. Finlay
opined more particularly that the consultations Dr. Ross received from
Drs. Anderson and Mikelberg suggesting the presence of a possible glaucomatous
state would not have negated the need for or the potential benefit to be
derived from the Membrane Surgery.  He testified, as had Drs. Ross and
Goldberg, that there is no other treatment available to address a membrane
pathology.  He also supported Dr. Ross’s testimony to the effect that a
membrane spreads and typically worsens an individual’s vision over time, eventually
resulting in blindness and, therefore, no value would be gained in having the
surgery if the patient were to postpone it too long.

[245]     Dr. Finlay
further substantiated Dr. Ross’s evidence that the removal surgery is
indicated where the membrane has caused cystoid macular edema, which decreases an
individual’s vision, as he believed it had in Mr. Chen’s case.  He pointed
out the evidence of such edema in the sets of photographs for the 1999 and  2000
Angiograms.  He saw no material difference between the appearance of Mr. Chen’s
optic nerve head or the cystoid macular edema in the two sets of photographs.  Dr. Finlay
testified that the photographs showed Mr. Chen’s vision in his left eye
had diminished because of the membrane-induced cystoid macular edema and opined
that removal of the membrane should improve his vision.  Additionally, he
testified that none of the imaging taken before the Membrane Surgery indicated
that Mr. Chen had glaucoma or diabetic retinopathy.

[246]     In sum, on
the basis of Mr. Chen’s poor visual acuity and the results of the 2000
Angiogram, Dr. Finlay considered him to be an appropriate candidate for
the Membrane Surgery, and would have recommended that he undergo that surgical
procedure to improve his central vision whether or not glaucoma was present.

[247]     Another
point on which Dr. Finlay supported Dr. Ross’s testimony was that the
advice given to a patient in relation to the risks and benefits of a vitrectomy
and membrane removal is basically a standard speech that incorporates
percentages consistent with the medical literature on membrane removal.  In Dr. Finlay’s
opinion, Dr. Ross met the expected standard of care in advising Mr. Chen
of the risks and benefits of surgery of this kind.  For the purposes of his
opinion, he assumed that when Mr. Chen was seen by Drs. Ross and
Stockl on January 26, 2000, he was advised about the benefits and risks of
the proposed surgical removal along the following lines:

(i)     a
60 percent chance that he would experience two lines of improvement in his
vision on an eye chart;

(ii)    a
30 percent chance there would be some minimal improvement, less
distortion, but some improvement;

(iii)   up
to a ten percent chance of no improvement or a complication such as retinal
detachment, infection or loss of sight.

[248]     In
summarizing the risks and benefits at trial, Dr. Finlay opined that membrane
peel surgery has approximately an 80 percent chance of producing
significant visual improvement, and a ten to 15 percent chance of producing
only a moderate improvement.  He explained that the actual percentages for the
risks can vary depending on the patient’s general health and medications, but
are generally considered to be less than somewhere between five to ten percent. 
His evidence of a 90 to 95 percent chance of improvement of varying degrees
supported Dr. Ross’s evidence to the effect that the global success rate
was between 90 and 95 percent.

[249]     Dr. Finlay
noted that the risks are present in all vitrectomy and membrane peels but
represent a very small downside to the surgery. He concurred with Dr. Ross
that a patient with severe glaucoma would have a “very small” increased risk of
about one percent of the small chance of a catastrophic visual loss because of
the surgery; it does not increase the overall risk of complications by one
percent.  The increased risk reflects the fact that the optic nerve of a
glaucoma patient is more susceptible to vascular damage at the time of
surgery.  The reasons for this are not entirely clear.  He supported Dr.
Goldberg’s view that if such a risk materializes, it does so immediately at the
time of surgery.

[250]     Dr. Finlay
expounded that the 80 percent chance of significant improvement would decrease
to approximately 60 percent for patients who, unlike Mr. Chen, did
not have cystoid macular edema, because the likelihood of visual improvement is
much less in the absence of that condition.  He did not opine that the chance
of improvement would not be more than 60 percent if the patient had
glaucoma, as was submitted by Mr. Chen’s counsel in closing argument.

[251]     Ninety-nine
percent of Dr. Finlay’s patients agreed to have the membrane surgery after
the risks and benefits were disclosed in the foregoing terms.  At the time of
trial, he had performed between 50 and 100 epiretinal membrane operations on
patients with advanced glaucoma.  Although he could not be certain of the
figures, he estimated that of those patients, there was probably only one or
two who had not followed his recommendation to have the procedure.

[252]     Dr. Finlay
was questioned extensively about closed angle glaucoma and the post-operative
hospital records pertaining to Mr. Chen.  He explained that with angle
closure, the natural fluid made by the eye cannot escape and causes the
pressure to become very high.  The condition causes intense pain that can
persist for weeks if it is not resolved by medical intervention.  In
Dr. Finlay’s opinion, the suggestion that Mr. Chen had an angle
closure post-operatively did not fit with any of the medical records, including
the hospital records.

[253]     Dr. Finlay
characterized AION essentially as a vascular episode involving the optic
nerve.  He shared the defendants’ view that it is very difficult to
differentiate between AION and low/normal tension glaucoma because of their
similar presentation.  He commented that some physicians believe that they may
even be one and the same condition and that the latter is actually multiple
attacks of AION and it is, therefore, not unreasonable to classify one or the
other either way.  He interpreted Dr. Mikelberg’s opinion on causation as
emblematic of the difficulty in distinguishing between the two conditions,
noting that Dr. Mikelberg tread “right down the middle” of the two
diagnoses by covering off both as possibilities.

[254]     Dr. Finlay
concluded that Mr. Chen suffered from AION rather than low/normal tension
glaucoma, in part, because his vision loss happened so acutely on the third day
after surgery.  He opined that Mr. Chen’s optic nerve head pathology was
related to his poor vascular status and was “certainly not” related to the
Membrane Surgery and that Mr. Chen did not have AION at the time of the
Membrane Surgery.  Dr. Finlay appeared to use AION to describe a condition
where the blood vessels to the optic nerve suddenly become blocked and cause
catastrophic visual loss, which is a definition more in line with Dr. Ross’s
description of the multiple mini-strokes that he believes were responsible for Mr. Chen’s
left eye blindness.

[255]     Dr. Finlay
closed his October 5 expert report with these conclusions:

Therefore, it is my conclusion that [Mr. Chen] had
appropriate vitreoretinal surgery carried out on his left eye by Dr. William
Ross.  The pre-op diagnosis was confirmed with appropriate laboratory study.  The
potential risks and complications were appropriately given to the patient.  The
surgical procedure itself was appropriate and uneventful. The post-operative
management was exemplary and the course of [Mr. Chen’s] visual loss and
change would not have been altered by any change in the circumstances or
procedures regarding his management by Dr. Ross.

I therefore conclude that Dr. Ross
did meet all the required standards of care necessary to give [Mr. Chen] the
best potential outcome.

·       Summary
of the Medical Evidence

[256]     The
experts offered plausible theories, but reached no consensus, as to the cause
of Mr. Chen’s acute vision loss three days after the Membrane Surgery. 
The medical evidence established that Mr. Chen was likely a vasculopath
and that his impaired vascular system, probably due to his diabetes, produced a
significant degree of retinal vascular inefficiency that adversely affected his
left eye.

[257]     Dr. Mikelberg
opined that Mr. Chen’s loss of vision was caused either by his retinal
vascular disease or as a result of the progression of his low/normal tension
glaucoma.  He did not say whether one was more probably the cause than the
other.

[258]     Dr. Maberley
also concluded that Mr. Chen had significant vascular inefficiency at the
time of the Membrane Surgery, as well as glaucoma, possibly of the low/normal
tension type.  He confessed that he was at a “severe disadvantage”, because of
the dearth of medical records and information available to him when he prepared
his opinion.  In light of that, and given the necessarily equivocal nature of
Dr. Maberley’s opinion on causation, I attribute no weight to it.

[259]     Dr. Goldberg’s
opinion on causation was that Mr. Chen’s diffuse vascular disease had
likely damaged his optic nerve to a near “tipping point”, which crystallized
after the Membrane Surgery but was unrelated to it, and was responsible for
bringing about Mr. Chen’s precipitous loss of vision.

[260]     Dr. Finlay
supported the defendants’ testimony about the difficulty in differentiating
between AION and low/normal tension glaucoma and the notion that they may be
one and the same condition.  He concluded that Mr. Chen suffered from AION
after the Membrane Surgery, rather than low/normal tension glaucoma, and that
the AION event suffered by Mr. Chen on the third day post-operatively was
unrelated to the Membrane Surgery.  Dr. Finlay’s conception of AION
corresponded to Dr. Ross’s view, directly elicited in cross-examination,
to the effect that Mr. Chen’s ischemic eye resulting from the occlusion of
blood vessels in his optic nerve had triggered multiple mini-strokes and caused
Mr. Chen’s blindness.

[261]     There was
no agreement among the experts that glaucoma had played a causative role in Mr.
Chen’s loss of sight.  To the extent that Mr. Chen was suffering from
glaucoma at the time, the preponderance of their evidence established it was
low/normal tension glaucoma.  Although the experts did not hold a unified view
as to the precise mechanics leading to Mr. Chen’s blindness they did agree
that a vascular episode of some kind was most probably implicated.

Overview of
the Parties’ Positions

[262]     In closing
argument, Mr. Chen’s counsel submitted that Dr. Lee’s liability arose
from his alleged substandard conduct in relation to seven principal areas,
namely his failure to:

(1)    conduct an annual visual
field test on Mr. Chen from 1996 to 2000 to screen for glaucoma;

(2)    record the appearance of
Mr. Chen’s optic nerve and C/D ratio with sufficient detail to assess
whether there were any changes in its appearance over time;

(3)    record the time of day
he measured Mr. Chen’s IOP;

(4)    record all of the
complaints that Mr. Chen had at each visit in a detailed manner;

(5)    diagnose Mr. Chen
with advanced open angle glaucoma in a timely manner;

(6)    perform any medical
treatments that could have prevented Mr. Chen’s condition from worsening;
and

(7)    provide
Dr. Ross with a referral letter advising him of Mr. Chen’s medical
history, his inability to communicate with non-Mandarin physicians, and a
description of the reason for the referral.

[263]     The gravamen
of Mr. Chen’s claim against Dr. Lee is that he failed to diagnose his
glaucoma and the susceptible condition of his optic nerve before the Membrane
Surgery.  The essence of his complaint is that the delayed diagnosis of
glaucoma stems from Dr. Lee’s failure to arrange automated visual field
tests, at least annually, which were indicated for several reasons, including
that Mr. Chen was an elderly person at high risk for glaucoma and had
complained of symptoms reflective of peripheral vision impairment.  Dr. Lee’s
alleged breach of his duty of care deprived Mr. Chen of appropriate
treatment for his glaucoma (whatever the type) in a timely manner, which
Mr. Chen says would have preserved the vascular health of his optic nerve,
enabling it to endure the Membrane Surgery and thereby prolonging his sight. 
Mr. Chen’s counsel clarified that the treatment referred to in this regard
was the treatment that Mr. Chen received by Dr. Mikelberg in respect
of his right eye after the Membrane Surgery, and more generally, whatever medical
treatment that could have prevented Mr. Chen’s condition from worsening
and preserved the vision in his left eye for a longer period of time.

[264]     Mr. Chen
alleges that Dr. Ross’s breached his duty of care by failing to do ten things
before the Membrane Surgery, namely:

(1)    obtain
a thorough medical history of Mr. Chen from Dr. Lee;

(2)    obtain
a thorough medical history from Mr. Chen;

(3)    perform
a thorough eye examination of Mr. Chen;

(4)    accurately
assess whether Mr. Chen was a candidate for the Membrane Surgery;

(5)    accurately
advise Mr. Chen of the risks associated with the Membrane Surgery, including
the increased risk for patients with glaucoma;

(6)    adequately
assess whether Mr. Chen understood the risks associated with the Membrane
Surgery;

(7)    advise
Mr. Chen that one of the risks of the procedure was the loss of vision in
his left eye;

(8)    determine
Mr. Chen’s tolerance of risk if the Membrane Surgery was unsuccessful;

(9)    advise
Mr. Chen of the treatment options available as an alternative to the
Membrane Surgery and their attendant risks; and

(10)  disclose
to Mr. Chen the risks and benefits of the Membrane Surgery in writing and
ensure they were reiterated to him at the hospital at the time of the Membrane
Surgery through a hospital translator.

[265]     Although
Mr. Chen alleges that Dr. Ross breached his duty of care on matters
unrelated to the informed consent issue, the thrust of his claim against Dr. Ross
was that he had not provided his informed consent to the Membrane Surgery.

[266]     A number
of the criticisms raised by Mr. Chen belied a lack of appreciation of the
constituent elements of negligence, in particular, the compulsory causal link
between the alleged substandard conduct and the harm done, and/or were without
foundation in the evidence.

[267]     The
defendants deny any breach of their respective standards of care.

[268]     Dr. Lee
argues that if he were found to have violated the applicable standard of care
on any basis, there is no evidence that an earlier diagnosis and treatment of Mr. Chen’s
low/normal tension glaucoma would have prevented or postponed the unfortunate outcome,
or should have precluded the referral he made to Dr. Ross.  In short,
claims Dr. Lee, even if some aspect of his conduct had fallen below the
acceptable standard, which he denies, it did not cause Mr. Chen’s
blindness.

[269]     Dr. Ross
contends there is no evidence that he failed to meet the standard of care expected
of a retinal subspecialist seeing a patient referred for retinal problems.  His
position is that the Membrane Surgery was uneventful and that Mr. Chen’s
acute loss of vision on the third post-operative day was unrelated to it.  In
the alternative, Dr. Ross says that even if the Membrane Surgery caused
the injury to Mr. Chen, the fact is that loss of vision is a rare but real
risk of the procedure, and this risk and other potential complications were adequately
explained to Mr. Chen such that he had the requisite disclosure upon which
to give his informed consent, and did so.  It is Dr. Ross’s further
contention that even if Mr. Chen had not been so informed, a reasonable
person in his circumstances, appropriately informed of the nature and
prediction of risks associated with the Membrane Surgery, would have consented
to it.

[270]     Given my
dismissal of this case, it is unnecessary to summarize the parties’ submissions
on damages.

LEGAL
PRINCIPLES

[271]     To succeed
in a medical malpractice claim grounded in negligence, the plaintiff must
establish the following:

(i)         
the physician owed the plaintiff a duty of care;

(ii)       
the physician breached the applicable standard of care expected in the
circumstances;

(iii)       the
plaintiff suffered harm;

(iv)      the
harm suffered by the plaintiff was caused, as that concept is understood in the
law of negligence, by the physician’s substandard conduct.

[272]     Proof of
all these constituent elements is essential.  The defendants do not dispute
that they owed Mr. Chen a duty of care.  The contentious issues are
whether they breached their respective standards of care and, if so, whether
any such breach caused Mr. Chen’s loss of vision and, in the case of Dr. Ross,
whether he obtained Mr. Chen’s informed consent to the Membrane Surgery.

·       Standard
of Care

[273]     A
physician’s error in clinical judgment or an adverse outcome from medical treatment
does not necessarily correspond to medical negligence: Belknap v. Meakes
(1989), 64 D.L.R. (4th) 452 (B.C.C.A.) [Belknap]; Fairley (Guardian ad litem
of) v. Waterman, 2002 BCSC 10 [Fairley].

[274]     There is
no uniform standard of care governing all doctors.  The applicable standard is
related to the physician’s education, experience, qualifications and the surrounding
circumstances.  Specialists are expected to exhibit a higher degree of skill in
their field than are general practitioners with respect to treatment as well as
diagnosis.  The physician’s conduct is evaluated objectively against a
reasonable medical person who possesses and exercises the skill, knowledge, and
judgment of the normal prudent practitioner of his or her special group, in the
particular circumstances, at the material time: Wilson v. Swanson,
[1956] S.C.R. 804 [Wilson]; ter Neuzer v. Korn, [1995] 3 S.C.R.
674 [Korn].

[275]     The enduring
remarks of Schroeder J.A. in Crits v. Sylvester, (1956),
1 D.L.R. (2d) 502 (Ont. C.A.) at 13, aff’d [1956] S.C.R. 991,
are instructive of these points:

The legal principles involved are
plain enough but it is not always easy to apply them to particular
circumstances. Every medical practitioner must bring to his task a reasonable
degree of skill and knowledge and must exercise a reasonable degree of care. He
is bound to exercise that degree of care and skill which could reasonably be
expected of a normal, prudent practitioner of the same experience and standing,
and if he holds himself out as a specialist, a higher degree of skill is
required of him than of one who does not profess to be so qualified by special
training and ability.

[276]     All
specialists do not share an equivalent standard of care.  Practitioners with
different specialties are not ordinarily expected to have the knowledge and
skill outside the bounds of their respective specialty areas.  By way of
example, in Kita v. Braig (1992), 71 B.C.L.R. (2d) 135 (C.A.), leave to
appeal to S.C.C. refused, [1992] S.C.C.A. No. 469, (1993), 74 B.C.L.R.
(2d) xxx (S.C.C.), an ear, nose, and throat specialist performing a particular
surgical procedure was not held to the standard of a vascular surgeon. 
Similarly, in McColl v. Hudson, 1998 CarswellBC 769, [1998] B.C.J. No. 801
(S.C.), an obstetrician conducting an ultrasound was not held to the standard
of a radiologist.

[277]     Neither
the generalist nor specialist is expected to meet a standard of perfection; only
reasonable care is required, not infallibility.

[278]     In the
landmark decision of the Supreme Court of Canada in Korn, Sopinka J.,
for the Court, commented on the necessity of expert evidence in cases of
medical malpractice at para. 44:

As was observed in [Lapointe
v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351], courts should not involve
themselves in resolving scientific disputes which require the expertise of the
profession.  Courts and juries do not have the necessary expertise to assess
technical matters relating to the diagnosis or treatment of patients.  Where a
common or accepted course of conduct is adopted based on the specialized and
technical expertise of professionals, it is unsatisfactory for a finder of fact
to conclude that such a standard was inherently negligent.

[279]     The law
admits a narrow exception to the general rule that mandates the tendering of expert
evidence as to the standard of care.  It may not be required where the impugned
conduct does not involve a matter of technical skill and expertise, but instead
pertains to the taking of precautions in regard to something about which any
ordinary, reasonable person would be competent to determine: Anderson v.
Chasney, [1949] 4 D.L.R. 71 (Man. C.A.), aff’d [1950] 4 D.L.R. 223
(S.C.C.) (failure to count sponges in and out of surgery).

[280]     Differences
of practice and opinion concerning diagnosis and treatment exist among members
of the medical profession.  Conduct that conforms to a generally accepted or
standard practice will not normally be considered to constitute negligence merely
because there is a body of opinion that takes a contrary view: Belknap;
Fairley.  The physician’s treatment or conduct in question is evaluated
in light of the approved practice at the material time and in the prevailing
circumstances at the time.

[281]     The
concept of two schools of thought stands for the proposition that reasonable
ophthalmologists acting reasonably can disagree on patient management issues
and diagnosis, and that their disagreement does not, of itself, imply a breach
of the standard of care.  The role of the Court is not to determine which of
the accepted practices is the best or preferred practice, as that would not
offer a sufficient basis for a finding of negligence.  The Court must simply
decide whether there is a reputable body of medical opinion in support of the
school of thought adhered to and whether the followed practice was reasonable
in all the circumstances.  The onus of proving that the conduct conformed to an
approved practice at the relevant time falls to the defendant: Korn; Belknap;
Brimacombe v. Mathews, 2001 BCCA 206.

[282]     Expert
evidence that establishes there are two or more competing and accepted schools
of thought in respect of the medical issue in question, and that the defendant
physician adhered to one of them, is typically fatal to a negligence claim.  This
holds true even if, in retrospect, adherence to that line of thinking was
erroneous: Fairley at para. 42.

[283]     A succinct
statement of the defence of approved practice is found in Korn at para. 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.

[284]     At the
same time, the Court in Korn acknowledged at para. 41 the potential
that a common practice could be condemned as negligent if it was fraught with
obvious risks.

[285]     Application
of the principle is nicely illustrated in James v. White, [1999] B.C.J. No. 2058,
1999 CarswellBC 2002 (S.C.) in the context of an allegation of the defendant’s delay
in diagnosing breast cancer.  There, the defendant physician detected a lump in
the plaintiff’s breast and referred her for a mammogram that came back negative. 
Several months later, however, the plaintiff was diagnosed with breast cancer. 
She claimed that the defendant physician was negligent in failing to diagnose the
cancer earlier and that she should have been referred for a specialist
consultation, which would have altered the course of her cancer treatment and
ultimately her prognosis.

[286]     There was
disagreement among the experts at trial as to the appropriate standard of care
in the circumstances.  On the one hand, the plaintiff’s expert opined that once
a lump had been detected, the first indicated diagnostic tool would have been
to perform a fine needle aspiration.  On the other side were the defendant’s
experts, whose collective view was that a general practitioner should exercise
clinical judgment to determine whether a breast lump requires further
investigation and assessment or warrants a referral to a specialist.  They
further testified that if the characteristics of the lump were not worrisome
and mammographic examination was negative, it was acceptable practice to direct
the patient to undertake self-examination with instructions to return for
reassessment in the event of any change.

[287]     Holding for
the defendant, the Court stated at para. 45:

In circumstances where the
evidence discloses differing schools of thought as to the appropriate standard
of care, it is acceptable that the physician adhered to an accepted school of
thought and whether one of the accepted schools of thought is the better is not
a legal issue. [See Belknap v. Meakes, supra]

[288]     Evidence
of a physician’s usual practice in relation to certain conduct may form a
sufficient evidentiary base upon which the Court can make a finding of fact: Friedsam
(Guardian ad litem of) v. Ng (1993), 86 B.C.L.R. (2d) 335 (C.A.).

·       Causation

[289]     A finding
that a defendant’s conduct has fallen below the requisite standard of care does
not necessarily make that defendant liable for the plaintiff’s injury.  The
plaintiff must also prove that the defendant’s substandard conduct caused the
injury in respect of which the plaintiff is seeking damages.

[290]     The
primary test used in determining causation in negligence is the “but for”
test.  The plaintiff bears the onus of proving, on a balance of probabilities,
that “but for” the defendant’s negligent act or omission, the injury would not
have occurred: Athey v. Leonati, [1996] 3 S.C.R.; 458 [Athey]; Blackwater
v. Plint, 2005 SCC 58; Clements v. Clements, 2012 SCC 32 [Clements];
Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 [Ediger]. 
Inherent in the test is the requirement that the injury would not have happened
without the defendant’s negligence: Clements at para. 8; Ediger
at para. 28.

[291]     The
plaintiff need not establish that a defendant’s wrongful conduct is the sole
cause of his injury.  So long as a substantial connection between the harm and
the defendant’s negligence beyond the “de minimus” range is
established, the defendant will be fully liable for the harm suffered by a
plaintiff, even if other causal factors, which the defendants are not
responsible for, were at play in producing that harm: Farrant v. Laktin,
2011 BCCA 336; Athey; Resurfice Corp. v. Hanke, 2007 SCC 7 [Resurfice].

[292]     Applying
the “but for” approach to the case at hand requires that Mr. Chen prove
that it is more likely than not that without the impugned conduct of one or
both of the defendants, his injury would not have occurred.

[293]     The law
has long recognized that plaintiffs frequently encounter substantial practical
difficulties in proving causation.  In the seminal decision of Snell v.
Farrell, [1990] 2 S.C.R. 311, the Supreme Court of Canada held that the causation
test does not demand scientific precision and is not to be applied too rigidly. 
Causation is a practical question of fact which can best be answered by
ordinary common sense.

[294]     The
concepts of etiology in the medical sphere and causation at law are not
synonymous.  This is because the “but for” test need only be proved on a
balance of probabilities in contrast to the more rigorous standard that
approaches scientific certainty familiar to the medical field.  Mindful of that
key difference, the Court in Tsalamandris v. MacDonald, 2011 BCSC 1138,
at paras. 144-146, var’d on other grounds, 2012 BCCA 239, provided these
instructive observations in relation to the causation analysis:

Because the “but for” test is to be proved on a balance of
probabilities, rather than a standard of scientific certainty, great care must
be had in assessing medical evidence.  The human condition is incredibly
complex.  The precise biological, biochemical or molecular mechanisms causing
many medical conditions are often not known and may not be known for lifetimes
to come, and for the same reason, prognosis and treatment is also often not
certain.  In cases where medical causation cannot by its very nature be proven
with certainty, medical experts may not be comfortable stating a
black-and-white opinion as to what “caused” a patient’s condition.  Often
medical evidence refers to known “risk factors” for medical conditions, or a
number of causes, precisely because of the expert’s discomfort in assigning one
“cause” to a complex medical issue.

In determining causation in the legal context, courts must be
mindful to assess the import and substance of the expert opinion evidence, and
to be cautious about the wording used by the experts so as to not unduly
discount or over-weigh the expert’s choice of language when describing medical
causation.  Ultimately causation is a question for the court, taking into
account the evidence.

It is important for the court to keep in mind that all that
is required to determine these complex medical issues in the context of
causation is for the plaintiff to prove what is more likely than not.  This is
what is meant by the “but for” test: it is more likely than not, that without
the tort, the injury or medical condition would not have happened.

[295]     The court
is called upon to exercise caution in inferring legal causation by exclusive or
substantial reference to a temporal sequence of events: Madill v. Sithivong,
2012 BCCA 62 at para. 20; White v. Stonestreet, 2006 BCSC 801 at paras. 74-75. 
But the judicial insistence of caution does not signify judicial thinking that
temporal reasoning is an illegitimate analysis or a branch of logic to be
seldom invoked.

[296]     In
exceptional circumstances, the “but for” approach may be dispensed with in
favour of a material contribution to risk analysis.  This exception to the
conventional “but for” standard is not really a test by which to prove factual
causation.  It is a basis for establishing legal causation where “fairness and
justice demand deviation from the ‘but for’ test”: Clements at para. 45. 
Public policy considerations are at the root of its inception.

[297]     The
material contribution to risk approach is invoked in the rare case where “but
for” causation cannot be proven against any of the defendants, all of whom are
negligent in a way that might have in fact caused the injury, because each
defendant can “use a ‘point the finger’ strategy to preclude a finding of
causation on a balance of probabilities”: Clements at para. 43.  It,
therefore, only applies in cases “where it is impossible to determine which of
a number of negligent acts by multiple actors in fact caused the injury, but it
is established that one or more of them did in fact cause it.”: Clements
at para. 13.

[298]     In Clements,
McLachlin C.J. summarized the availability of this less onerous, policy-driven
material contribution to risk analysis over the traditional “but for” standard
at para. 46:

[46]  The foregoing discussion leads me to the following conclusions as to
the present state of the law in Canada:

(1)     As
a general rule, a plaintiff cannot succeed unless she shows as a matter of fact
that she would not have suffered the loss “but for” the negligent act or acts
of the defendant.  A trial judge is to take a robust and pragmatic approach to
determining if a plaintiff has established that the defendant’s negligence
caused her loss. Scientific proof of causation is not required.

(2)     Exceptionally, a
plaintiff may succeed by showing that the defendant’s conduct materially
contributed to risk of the plaintiff’s injury, where (a) the plaintiff has
established that her loss would not have occurred “but for” the negligence of
two or more tortfeasors, each possibly in fact responsible for the loss; and
(b) the plaintiff, through no fault of her own, is unable to show that any
one of the possible tortfeasors in fact was the necessary or “but for” cause of
her injury, because each can point to one another as the possible “but for”
cause of the injury, defeating a finding of causation on a balance of
probabilities against anyone.

[299]     Mr. Chen
articulated his principal arguments on causation by reference to the “but for”
test.  However, he also posited that it was appropriate for the Court to resort
to the material contribution to risk approach as a basis for imposing liability. 
As best I can discern, his rationale for the application of the material
contribution to risk approach was that the expert medical evidence was
inconclusive as to the precise medical cause of Mr. Chen’s acute vision
loss.

[300]     The material contribution test is not a default
position to be invoked where causation is difficult to prove using the
traditional standard.  Were that the criterion, the “but for” test of causation
would be consigned to a dusty back shelf in the majority of claims involving
complex medical issues.  To avail himself of the exceptional material
contribution to risk approach, Mr. Chen must establish that “but for” the
defendants’ negligence, his injury would not have occurred and through no fault
of his own he is unable to show that one of them was the necessary or “but for”
cause, because each of the defendants is able to cast a finger of blame at the
other and, in doing so, defeat a probable finding of causation against both of
them.

[301]     The present case is clearly not of the exceptional kind
contemplated by Resurfice and its judicial lineage.

·       Informed
Consent

[302]     Since the
landmark decisions of the Supreme Court of Canada in Hopp v. Lepp,
[1980] 2 S.C.R. 192 and Reibl v. Hughes, [1980] 2 S.C.R. 880, it has
been firmly entrenched in the jurisprudence that a physician may be found
negligent even where the medical treatment complies with the expected standard
of care, if he or she has failed to obtain the patient’s informed consent to the
treatment that has caused the injury.

[303]     Before
obtaining a patient’s consent and implementing a course of treatment, the
doctor must disclose to the patient the nature of the proposed treatment, its
gravity, and any associated material, special and unusual risks that a
reasonable person in the patient’s shoes would want to know: Reibl.  In
addition to informing the patient about the frequency or statistical chance of a
material or special risk arising, the physician must also explain the nature
and severity of the injury that could ensue: Brock v. Anderson, 2003 BCSC
1359 [Brock].

[304]     In the
aftermath of Reibl, the courts have taken an expansive approach in
characterizing risks that carry serious consequences as constituting material
risks.  In the result, the duty to disclose necessitates informing a patient of
even a statistically remote risk where the potential consequences of it are
sufficiently serious that a reasonable patient would likely consider it to be significant:
 Brito (Guardian ad litem of) v. Woolley, 2003 BCCA 397, leave to
appeal to S.C.C. refused, [2003] S.C.C.A. No. 418, 2004 CarswellBC 880 (S.C.C.).

[305]     As
mentioned, material information beyond the associated risks that a reasonable
person in the patient’s position would want to know must also be disclosed. 
This would encompass, for example, the existence of available alternatives to
the course of treatment being proposed and their respective attendant material
risks: Brock; Brito.

[306]     Mr. Chen
must do more than merely establish that he was not fully informed of the
material, special, and unusual risks and information.  If he establishes a lack
of full disclosure, he must still go on to prove a causal link between the
failure to obtain his informed consent and the injury he sustained.  A perusal
of the case law shows that this causation hurdle is often extremely difficult
for a plaintiff to overcome.

[307]      The causation
test in this context is a modified objective one comprised of a combination of
subjective and objective elements.  The question is not whether Mr. Chen
would have elected to proceed had he been sufficiently informed of the material
risks and information relative to the Membrane Surgery.  Rather, the test asks whether
the reasonable person in Mr. Chen’s shoes, being the average prudent
person who possesses Mr. Chen’s reasonable beliefs, fears, desires, and
expectations, would have declined the Membrane Surgery at the particular time
had the risk that ultimately came about (i.e. becoming legally blind in his
left eye) been fully disclosed: Arndt v. Smith, [1997] 2 S.C.R. 539.  If
the properly informed, reasonable person in Mr. Chen’s position would have
consented to the Membrane Surgery in any event, Dr. Ross’s negligence
cannot be said to have been the cause of his injury.

[308]     To
summarize, for Mr. Chen to succeed in a claim for lack of informed consent
for the Membrane Surgery, he must prove that:

(i)     a
material, special, or unusual risk was not disclosed to him in advance of the
Membrane Surgery;

(ii)    a
reasonable person in Mr. Chen’s position would not have agreed to the
Membrane Surgery if he had been sufficiently advised of such risks; and

(iii)   the
risk associated with the Membrane Surgery that was not disclosed materialized
and caused the injury.

DISCUSSION

·       Breach
of the Standard of Care and Causation

[309]     I make
the preliminary observation that because of the factual and analytical overlap,
it is inevitable that a number of findings relative to Dr. Lee’s standard
of care have relevance in the assessment of Dr. Ross’s standard of care. 
The discussion is not readily amenable to a compartmentalized analysis.

[310]     In closing
submissions, Ms. Sood contended that when Mr. Chen experienced his
acute vision loss on February 5, 2000, it was undisputed that he had advanced 
chronic open angle glaucoma that had taken years to develop.  Her companion assertion
was that it was undisputed that his loss of vision was caused by the atrophied
state of his optic nerve, a condition that should have been detected much
earlier.  These matters asserted to be of common ground were very much in
dispute.

[311]     That a visual
field test is an effective diagnostic tool for glaucoma, including the primary
open angle and low/normal tension varieties, and was readily available in the
relevant period, was not disputed.  The pivotal issue on this front is whether
the applicable standard of care required Dr. Lee to test Mr. Chen’s
visual fields.

[312]     One branch
of Mr. Chen’s argument is that the prevailing standard of care required that
a general ophthalmologist test a patient’s visual fields in order to screen for
glaucoma as a regular component of the patient’s annual eye check-up.

[313]     Guidelines
used by professional bodies are often tendered as evidence of the standard of
care and of approved practice.  In this case, excerpts from an article published
in the Canadian Journal of Ophthalmology titled “Canadian Ophthalmological
Society evidence-based clinical practice guidelines for the periodic eye
examination in adults in Canada” were put to Dr. Lee in
cross-examination.  He agreed that the article set out the Society’s vision
screening guidelines which, for the sake of brevity, I will refer to as
the “COS Guidelines”.

[314]     As a
general qualification, Dr. Lee emphasized that the COS Guidelines were in
reference to primary open angle glaucoma, which neither he nor the glaucoma
expert, Dr. Mikelberg, believed was the type of glaucoma afflicting Mr. Chen. 
Having highlighted that distinction, Dr. Lee agreed with a number of the general
statements contained in the article about the COS Guidelines and with several
of the COS Guidelines themselves, and confirmed that he followed many of them. 
In particular, he acknowledged the accuracy of the stated observations to the
effect that primary open angle glaucoma causes insidious damage to the optic
nerve and vision, and that few people have an early awareness they have the
condition.  He further agreed with the statement that primary open angle
glaucoma is an ideal disorder for screening because it is asymptomatic,
typically progresses slowly and can be effectively treated.  Dr. Lee approved
the propositions put to him from the COS Guidelines about screening for
glaucoma, including that high-risk patients age 60 years or older should
receive comprehensive eye examinations annually.

[315]     In
cross-examination, Ms. Sood recited to Dr. Lee some elements of the
annual eye examination enumerated in the COS Guidelines (i.e. review of the
patient’s history, visual acuity status with correction at a distance, best
visual acuity without correction, muscle balance and pupillary reaction).  Dr. Lee
confirmed that he carried out those tests, as well as others, on Mr. Chen
and followed most of the recommended components of an annual eye examination more
frequently than annually.  His charts tended to support his testimony.

[316]     Mr. Chen’s
counsel directed Dr. Lee to the test of “gross visual fields to
confrontation” listed in the COS Guidelines under the heading of a
comprehensive eye examination.  Dr. Lee would not agree that such a test
was an essential component of that examination.  He testified that he does not
perform a confrontation visual field test or order that a patient have an
automated visual field test as a matter of routine in every annual eye
examination.  This was especially the case with respect to patients who, like Mr. Chen,
displayed a normal IOP, had a normal dilated fundoscopic examination, and
exhibited no indicia suggestive of peripheral vision difficulties.

[317]     Dr. Lee
considered the COS Guidelines to be informative and of assistance to
practitioners, but said they did not constitute compulsory, professional, or
clinical rules, or purport to be a substitute for the clinical assessment of
the individual patient.  He forcefully testified that it was appropriate for a
clinician to consider whether there was an index of suspicion for the risk of
glaucoma as a pre-requisite to determining whether a confrontation field test
or other visual field assessment was warranted.  Dr. Lee included among the
suspicious factors an abnormally high IOP, abnormal appearance of the optic cup
and optic disc, signs of peripheral vision impairment, a family or medical
history of glaucoma, an unexplained loss in visual acuity, trauma, retinal
detachment, and brain tumor.

[318]     In the
context of this line of cross-examination, I understood Mr. Chen’s
counsel and Dr. Lee to be referring to an automated visual field test
rather than a clinical confrontation visual field test.  In fact, that assumption
underlined much of the trial evidence elicited on the matter of the visual
field testing of Mr. Chen at large.  However, and this point is of
significance, at no time during cross-examination was it directly put to Dr. Lee
that the COS Guidelines recommended an automated visual field test as a
constituent element of an annual eye examination for patients classified as
high-risk or otherwise.  The only type of visual field test that Ms. Sood drew
to Dr. Lee’s attention as being mentioned in the COS Guidelines was the
visual field test to confrontation, which is conducted by an ophthalmologist in
the office.

[319]     Dr. Finlay
was aware of the COS Guidelines.  He stressed that they were designed for
general ophthalmologists.  Consequently, as a retinal subspecialist he does not
follow them and instead customizes his examination to fit the patient’s
specific retinal problem.

[320]     Dr. Lee
noted, and I accept, that the guidelines endorsed by the Society with
regard to the detection of glaucoma have changed over time.  The publication
date of the article containing the COS Guidelines was noted to be 2007.  More
crucially, the date of the inception of the COS Guidelines themselves and, in particular,
whether they were in existence in the relevant timeline, was not established.

[321]     I have no
confidence that the COS Guidelines are authoritative or reflect or inform the
standard of care applicable to a general ophthalmologist on the question of whether
a confrontation and/or automated visual field test were essential elements of
an annual eye examination to be conducted on high-risk patients or across a
broader base of patients, within the material period, or ever.  They were not
entered as evidence at trial, and through Dr. Lee’s cross-examination, offered
negligible assistance in determining whether the prudent general ophthalmologist,
exercising reasonable skill, knowledge and judgment in the particular
circumstances, would have ordered an automated type of visual field test or
administered a confrontation visual field test on Mr. Chen before the
Membrane Surgery.

[322]     Dr. Goldberg’s
evidence persuasively bolstered Dr. Lee’s testimony.  He opined that the
chief objective of an annual eye examination is to test the patient’s central
vision and does not ordinarily encompass a confrontation or other visual field
test.  Neither of the medical experts called by Mr. Chen challenged his
evidence.  I accept Dr. Goldberg’s opinion and conclude that in the relevant
period, a comprehensive annual eye examination did not mandate peripheral
vision testing by way of clinical confrontation or automated visual field tests.

[323]     I move now
to the question of whether the duty of care required that Dr. Lee carry
out or order visual fields in any event, that is to say, based on Mr. Chen’s
complaints and/or Dr. Lee’s clinical observations of him, or on some other
ground.  I will launch this part of the discussion by reminding that Dr. Mikelberg
supported Dr. Lee’s evidence that Mr. Chen’s advanced age and
diabetes were not factors considered to be suspicious for glaucoma. 
Drs. Mikelberg and Goldberg also opined that Mr. Chen’s complaints of
blurred vision indicated a central vision problem and not a difficulty with
peripheral vision and, therefore, that symptom was not suspicious for glaucoma
either.  Something else was required.

[324]      Dr. Mikelberg
did not subscribe to the index of suspicion approach that Dr. Lee adhered
to in determining whether a patient’s visual field should be tested.  He opined
that the standard of care for a general ophthalmologist would be to order
visual field testing on a patient with a large C/D ratio, which he quantified
as 0.7 and even smaller, despite the fact that such measurement came within the
normal range and a large C/D ratio is not conclusive of glaucoma.

[325]     Aware that
in February 1998, Drs. Thomas and Chang had assessed Mr. Chen’s
C/D ratio respectively as “cupped” (only at trial did Dr. Thomas elaborate
that his chart diagram reflected a C/D ratio of 0.7) and “large”, Dr. Mikelberg
opined that Dr. Lee should probably have ordered visual fields then.  Although
he had reviewed Dr. Lee’s medical records, it was not clear from his
evidence whether he appreciated that approximately four months earlier, in
October 1997, Dr. Lee had conducted a confrontation visual field test on Mr. Chen
that detected no peripheral vision difficulties.

[326]     In
Dr. Mikelberg’s view, the decision to order visual fields turned
exclusively on the optic nerve findings.  Given his area of subspecialty, it is
not surprising that he leaned heavily toward testing for glaucoma based on the
single criterion of a large C/D ratio.

[327]     In light
of the fact that there is a subjective element to assessing a patient’s C/D
ratio and because Dr. Lee did not record his measurement of
Mr. Chen’s C/D ratio, the size of Mr. Chen’s C/D ratio as observed by
Dr. Lee at any given time cannot be known.  Based on the totality of the
evidence, I think it reasonable to infer that from February 1998 onward,
Dr. Lee would have likely observed Mr. Chen’s C/D ratio as being
within the normal range of between 0.6 and 0.7, or thereabouts.  From
Dr. Mikelberg’s standpoint, C/D ratios of such magnitude would have called
for Dr. Lee to order visual fields on Mr. Chen.

[328]     As a
general ophthalmologist, however, Dr. Lee followed a different approach.  he
required, as a pre-requisite to administering a clinical or automated visual
field test, an index of suspicion for glaucoma based on recognized criteria beyond
simply the size of the C/D ratio.  His evidence was that, aside from Mr. Chen’s
elderly years, he exhibited none of the risk factors that would trigger a
clinical suspicion of glaucoma.

[329]     The
practice of formulating an index of suspicion for glaucoma as a precondition to
testing a patient’s visual fields was credibly endorsed by Dr. Goldberg,
who was the only practicing general ophthalmologist to testify as an expert.  Support
for adherence to that practice was also found in the expert testimony of
Dr. Maberley and Dr. Finlay.  Implicit in this school of thought is
the notion that a large C/D ratio that fell within the normal range, by itself,
would not warrant visual field investigation, particularly if, on examination,
the optic disc, optic cup and surrounding tissue appeared to be healthy.

[330]     The
experts did not discredit the index of suspicion model followed by Dr. Lee
as being an outmoded or otherwise unacceptable professional practice at the
material time.  Quite the converse, the defendants have satisfied me that the
index of suspicion approach conformed to an approved practice followed by
general ophthalmologists at the relevant time .  I conclude that Dr. Lee
adhered to that recognized school of thought and acted reasonably in doing so.

[331]     Evaluating
the quality of Dr. Lee’s conduct within this school of thought paradigm
raises the question of whether there were risk factors known to him or that
ought reasonably to have been known to him, sufficient to establish an index of
suspicion for glaucoma and thereby warrant testing of Mr. Chen’s visual
fields.

[332]     Alluded to
in the cross-examination of a number of the defence witnesses, and integral to Ms. Sood’s
closing submissions, was the notion that Mr. Chen and/or Ms. Chen had
complained to Dr. Lee that Mr. Chen had experienced problems with his
peripheral vision or exhibited symptoms suggestive of such problems and, hence,
possibly glaucoma.  The development of Mr. Chen’s case pre-supposed that his
complaints of difficulty reading the newspaper and using the computer and of
tripping and falling reflected a peripheral vision deficit.  However, that supposition
was discredited by the medical evidence.

[333]     Most, if
not all, of the reported instances of Mr. Chen tripping and falling
occurred before he underwent cataract surgery and the probabilities of the evidence
establish that his cataracts were the likely culprit.  Also notable was that
after two of the reported falls, Dr. Lee administered a clinical
confrontation field test on Mr. Chen and found no evidence of peripheral
vision impairment.  Moreover, and in any event, the medical experts who spoke
to the issue, including Dr. Mikelberg, agreed that tripping and falling
were non-specific complaints that did not necessarily point to peripheral
vision problems, and, in all probability, would not have triggered further
investigation, such as the testing of visual fields, by a general
ophthalmologist.  The weight of the expert evidence is that the complaints made
by Mr. Chen and/or Ms. Chen to Dr. Lee about Mr. Chen’s
vision and his falling and tripping were signs associated with a central vision
compromise, and not with the peripheral vision deficit that would typically
accompany glaucoma.

[334]     Ms. Sood
was critical of Dr. Goldberg’s opinion as a whole.  She urged the Court to
attribute little weight to it on the ground that he had not paid appropriate
heed to the portion of Mr. Chen’s discovery evidence where he claimed to
have informed Dr. Lee about falling and of peripheral vision loss.  Upon
being asked to identify the pertinent passages in the transcript of Mr. Chen’s
discovery evidence, Ms. Sood clarified that Mr. Chen had not
explicitly said that he informed Dr. Lee he was experiencing peripheral
vision difficulties.

[335]     In closing
argument, Ms. Sood also remarked that Ms. Chen had testified that she
had accompanied her father to an appointment with Dr. Lee and expressed
concerns that her father may have glaucoma.  At no point in the trial did Ms. Chen
testify to that effect.  Nor did she say that she told Dr. Lee her father
was exhibiting peripheral vision impairment or told him about things that were
happening which, based on the medical evidence, would be considered suspicious
of peripheral vision limitation, such as missing seeing things off to the side
or bumping into things that were to the side.  At its core, Ms. Chen’s evidence
that she had informed Dr. Lee that her father had problems with his
peripheral vision, referred to her complaints that her father was tripping and
falling and experiencing difficulty reading.  Those complaints are not
suspicious for glaucoma.

[336]     There was
nothing convincing in Mr. Chen’s own evidence to show that at any point
before the Membrane Surgery he asked Dr. Lee about glaucoma or advised him
(or, for that matter, Dr. Ross) that he was experiencing symptoms or signs
associated with the impairment of his peripheral vision or which qualified as a
risk factor for glaucoma.

[337]     Dr. Lee’s
practice of not recording the measurement of Mr. Chen’s C/D ratio because
it was normal was not in violation of the standard of care at that time.  I also
find that, in the relevant period, the standard of care did not require a
general ophthalmologist to chart a baseline of a patient’s C/D ratio to facilitate
the detection of potential changes to it.

[338]     Although the
purpose of a fluorescein angiogram is to facilitate examination of the retina,
and it is recognized that the photographs are not conclusive as to the condition
of the optic nerve, it does not follow that the angiographic studies taken of Mr. Chen’s
eyes have no evidentiary value in deciding the issues in the case at hand.  Indeed,
Mr. Chen’s counsel relied on Dr. Mikelberg’s interpretations of
certain  of the angiographic photographs as support for her contention that Mr. Chen’s
optic discs did not appear to be healthy before the Membrane Surgery.  The
defendants relied on them as showing the converse.

[339]     Based on
Dr. Mikelberg’s evidence and the results of Dr. Lee’s confrontation
visual field test, I am satisfied that in early October 1997,
Mr. Chen had no detectable abnormalities in his peripheral vision.  After
doing that visual field test, Dr. Lee saw Mr. Chen four times in
1998.  At the March 5 appointment, Mr. Chen’s IOPs in both eyes were
normal.  On August 25 and October 22, Dr. Lee assessed
Mr. Chen’s optic nerve and disc as healthy.  The October 1998
Angiogram report did not raise any concerns about the state of Mr. Chen’s
optic disc, describing it as normal appearing.

[340]     At the October
22 visit, Dr. Lee charted evidence of a hemorrhage in Mr. Chen’s left
macula, which is at the center of the retina, and noted his impression that it
may be connected to age-related macular degeneration.  It was established
through Dr. Goldberg that evidence of a hemorrhage in the optic disc could
be associated with glaucoma.  Ms. Sood asserted that Dr. Lee’s detection
of its presence in Mr. Chen’s macula should have established an index of
suspicion for glaucoma.

[341]     Dr. Lee
was not cross-examined about whether the evidence of the hemorrhage he noted in
Mr. Chen’s macula in October 1998 was the kind of hemorrhage that would be
suspicious for glaucoma.  As well, the October 1998 Angiogram done just a week
or so later came back normal and reported no evidence of a hemorrhage.

[342]     Dr. Ross
was adamant that neither he nor Dr. Stockl saw any sign of hemorrhage in
Mr. Chen’s eye prior to the Membrane Surgery.  He credibly explained that
he did not consider it appropriate to ask Dr. Lee about whether or not
Dr. Lee may have ever seen evidence of hemorrhaging because it was within
Dr. Ross’s expertise and purview as a retinal subspecialist to detect and
diagnose those issues.  For that reason, he would not rely on general
ophthalmologist’s observations on the question of whether there was evidence of
a hemorrhage in the patient’s eye.  Dr. Ross added that to the extent
Dr. Lee had diagnosed age-related macular degeneration in Mr. Chen,
he disagreed with such diagnosis, stating there was no sign of such condition
before or at the time he removed Mr. Chen’s membrane.

[343]     The
evidence relating to Dr. Lee’s notation in October 1998 of a hemorrhage in
Mr. Chen’s macula was poorly developed and inconclusive.  It did not
advance Mr. Chen’s case against either of the defendants.

[344]     Obviously,
the issue of whether Dr. Lee should have arranged visual field testing of Mr. Chen
does not apply during the extended period that Mr. Chen was out of the
country.  Was Dr. Lee required to take those steps when he resumed Mr. Chen’s
ophthalmological care on December 3, 1999?

[345]     Dr. Goldberg
testified that Dr. Lee would have been expected to perform a full eye
examination when Mr. Chen returned as his patient after such a prolonged
hiatus.  I have concluded, however, that a confrontation or automated
visual field test would not have been an essential feature of such an
examination at that time.

[346]     When Dr. Lee
recommenced Mr. Chen’s care in December 1999, Mr. Chen complained of
deteriorating acuity in his left eye and continued to report blurred vision. 
The 1999 Angiogram requisitioned by Dr. Lee noted a C/D ratio of 0.7,
confirmed the presence of his epiretinal membrane, and endorsed consideration
of Mr. Chen undergoing membrane surgery.  The report did not comment on the
appearance of his optic nerve or discs one way or the other.  I find that
Dr. Lee was not concerned about the C/D ratio of 0.7 noted in the 1999
Angiogram report, because his clinical assessment confirmed his interpretation
of the 1999 Angiogram photographs to the effect that Mr. Chen’s optic disc
and optic cup looked good and appeared normal.

[347]     Dr. Goldberg’s
impression was that Mr. Chen’s optic nerves had a good neuroretinal rim
and a normal appearing optic disc in the sets of photographs related to the October 1998
and 1999 Angiograms.  Dr. Finlay shared that view.  Dr. Ross found
that to be the case with respect to the 2000 Angiogram photographs, which the
evidence established revealed nothing materially different in Mr. Chen’s optic
nerve or disc than what was shown in the 1999 Angiogram photographs.  Dr. Maberley
conceded that what he thought might have been some paleness of Mr. Chen’s
optic nerve in the angiographic photographs may well have been due to the
exposure of the film itself.  Only Dr. Mikelberg thought that Mr. Chen’s
optic nerve and neuroretinal rim did not appear healthy in the 2000 Angiogram
photographs.

[348]     As Dr. Maberley
testified, and his fellow experts agreed, a definitive assessment of the health
of the patient’s optic nerve and disc cannot be made based solely on the
results of a fluorescein angiogram.  The physician who performs the clinical
examination is in the best position to make that assessment.  In this case,
that was Dr. Lee in December 1999, and Dr. Ross and Dr. Stockl in January
2000.  Dr. Mikelberg did not have the benefit of having conducted a
pre-operative clinical examination of Mr. Chen.  The source of his assessment
of the state of Mr. Chen’s optic nerve and disc before the Membrane Surgery
were the angiographic photographs that told only a partial picture.  That
limitation is of significance and must not be overlooked.

[349]     Dr. Goldberg
testified that because an individual’s IOPs fluctuate throughout the day, a
general ophthalmologist is expected to chart the time of day they are
measured.  With perhaps one exception, Dr. Lee did not do so.  In
cross-examination, he gave implausible testimony to the effect that his
receptionist would have scheduled Mr. Chen’s appointments around the same
time and that, therefore, he would have assessed the IOPs at the same time of
day from appointment to appointment.  This was the only instance where
I considered Dr. Lee’s credibility to be in question.  For the
balance of his testimony, I found him to be forthright and credible.  All
things considered, I have concluded that this single occasion was not
sufficient to taint Dr. Lee’s credibility generally, or require corroboration
of his evidence on points of controversy.

[350]     There can
be no doubt that elevated IOPs constitute a risk factor for primary open angle
glaucoma; however, the preponderance of the expert evidence established that,
to the extent Mr. Chen was suffering from glaucoma at the time of the
Membrane Surgery, it was the low/normal tension variety.  That type of glaucoma
is not related to elevated IOPs.  None of the ophthalmologists involved in
Mr. Chen’s care before the Membrane Surgery recorded high IOPs, except for
Dr. Chang, whose elevated measurements were not known to Dr. Lee. 
The evidence does not support the probability that, had Dr. Lee measured
Mr. Chen’s IOPs at the same time of day on each visit, he would have
obtained one or more elevated readings sufficient to inform an index of
suspicion for glaucoma to justify visual field testing.

[351]      Based on
the contents of the October 1998 and 1999 Angiograms, his interpretation of the
accompanying photographs, and his clinical examinations of Mr. Chen, Dr. Lee
did not consider there to be sufficient risk factors to form a suspicion for
glaucoma, or any basis to warrant undertaking investigations for that disease,
such as the testing of Mr. Chen’s visual fields.  In my assessment, the
weight of the evidence establishes that Dr. Lee’s clinical judgment as a
general ophthalmologist was reasonably held and his approach was supportable as
an approved mode of practice.

[352]     For the
foregoing reasons, I conclude that Dr. Lee did not act in breach of his
expected standard of care in the prevailing circumstances by not administering
a confrontation visual field test on Mr. Chen after October 1997, by
not arranging for automated visual field testing at any point in time, or, more
generally, by failing to diagnose Mr. Chen with glaucoma prior to the
Membrane Surgery.

[353]     Relying mainly
on Dr. Finlay’s testimony that membrane removal is medically indicated
only where a patient’s visual acuity had deteriorated, Ms. Sood contended
that there was no need for the Membrane Surgery at all because Mr. Chen’s
vision had remained fairly constant at 20/70 for four years, for “a couple” of
years, or for “at least” one year.  Building on that premise, she hypothesized
that starting from at least 1998, Mr. Chen’s central vision constriction
may have actually been the manifestation of end-stage glaucoma and not due to
his epiretinal membrane.  This assertion was tied to the allegations of Dr.
Lee’s substandard conduct to the effect that his referral of Mr. Chen to
Dr. Ross was unnecessary and the mode of referral, being by telephone, was
inappropriate and inadequate because it did not relay Mr. Chen’s medical
history documenting his visual acuity measurements over time and other relevant
information.  The corresponding allegations against Dr. Ross are that he
failed to obtain a thorough medical history from Dr. Lee or from
Mr. Chen, and failed to accurately assess whether Mr. Chen was a proper
candidate for the Membrane Surgery.

[354]     There are
several reasons to reject this stream of argument.  In the first place,
Ms. Sood’s assertion that Dr. Lee did not meet his duty of care when
he used the telephone rather than written communication to refer Mr. Chen
to Dr. Ross was not remotely supported by the evidence.  The weight of the
evidence moved in the opposite direction.  It established that medical
referrals, including those that are not urgent, from one ophthalmologist to a
subspecialist over the telephone are an entirely acceptable practice.  This is
especially the case where, as here, the physicians involved have an ongoing
referral relationship.

[355]     More
importantly, a fulsome look at the evidence shows that Mr. Chen’s visual
acuity had not been static, as was urged by Ms. Sood.  In 1998, the acuity
in his left eye was charted as 20/50 minus by Dr. Thomas and was recorded
as slightly worse at 20/60 by Dr. Chang.  Mr. Chen’s own evidence was
that his vision had deteriorated while he was away in 1999, which was confirmed
on Dr. Lee’s examination of him on December 3 of that year.  In
January 2000, Dr. Ross and Dr. Stockl both graded his visual acuity
as 20/70.  The acuity in Mr. Chen’s left eye had lost a full line on the
eye chart over the span of less than two years.  That drop in acuity was
profound and prevented Mr. Chen from engaging in the lifestyle that he once
enjoyed.

[356]     Another
weakness in Ms. Sood’s argument is that it was built on an overly narrow interpretation
of Dr. Finlay’s evidence as to when the surgical removal of a membrane is
indicated.  His explanation was more nuanced.  It was uncontroverted that by
the time of Mr. Chen’s initial appointment with Dr. Ross, his
membrane was thicker, had expanded, and was causing cystoid macular edema.  Dr.
Finlay corroborated Dr. Ross’s testimony that the operation is indicated
where the membrane has triggered cystoid macular edema that has decreased the
patient’s vision.  Dr. Finlay confirmed Dr. Ross’s testimony that
there was no other treatment available to address Mr. Chen’s membrane
pathology and, if left untreated, it could worsen Mr. Chen’s vision and
lead to blindness.  He made the point that such edema was responsible for
decreasing Mr. Chen’s central vision.  The significance of the presence of
the cystoid macular edema in Mr. Chen’s eye was emphasized by
Dr. Ross, acknowledged by Dr. Finlay, and underscored in the addendum
of Dr. Chang’s consult letter to Dr. Thomas, and in Dr. Thomas’s
testimony.

[357]     More crucially,
Ms. Sood’s theory was not put to the defendants or to the medical experts. 
I consider it especially noteworthy that the glaucoma expert,
Dr. Mikelberg, was not asked whether the end-stage of Mr. Chen’s
advanced glaucoma could account for his deteriorating central vision prior to
the Membrane Surgery.  In fact, Dr. Mikelberg’s opinions and those held by
the other medical experts did not align well with Ms. Sood’s hypothesis. 
To the contrary, it was Dr. Mikelberg’s view that the purpose of the
Membrane Surgery was to improve Mr. Chen’s central vision, and offered that
as the rationale for his opinion that the presence of glaucoma would not have
affected the decision to proceed with the Membrane Surgery.

[358]     The
medical experts were of one mind that Mr. Chen was an appropriate
candidate for the surgical removal of his membrane to improve his central
vision.  They also agreed that the presence of glaucoma, even severe glaucoma,
would not have negated the need for him to undergo the Membrane Surgery.

[359]     A balanced
weighting of the evidence compels the conclusion that Dr. Lee’s referral
of Mr. Chen to Dr. Ross in respect of his epiretinal membrane, and
Dr. Ross’s determination that Mr. Chen was an appropriate candidate
for the Membrane Surgery, were each a prudent and reasonable decision, whether
or not Mr. Chen suffered from any type of glaucoma.

[360]     Another
prong of Mr. Chen’s argument that Dr. Ross ought to have reviewed Mr. Chen’s
medical chart in advance of the Membrane Surgery, is that he would have seen
that Mr. Chen’s left fundus was described as unusual in the October 1998
Angiogram.  Yet, in closing argument, Ms. Sood conceded that she did not
know what difference it would have made had Dr. Ross been in possession of
that information.  This argument went nowhere.

[361]     Along
similar lines, Ms. Sood asserted that by reviewing Mr. Chen’s past
medical records, Dr. Ross would have also become aware that Dr. Lee
had charted evidence of a hemorrhage in October 1998.  That notation, she
argues, ought to have prompted Dr. Ross to investigate glaucoma or some
other pathology prior to the Membrane Surgery.  This contention is also plainly
without merit.  I accept Dr. Ross’s testimony that as a retinal
subspecialist he relied exclusively on his own findings about whether there was
evidence of hemorrhage in Mr. Chen’s eyes, and that there was no such
evidence when he examined Mr. Chen.

[362]     Dr. Finlay’s
evidence, which I accept, was that retinal subspecialists do not routinely
request the patient’s medical records from the referring ophthalmologist.  They
prefer to requisition whatever test they consider appropriate and design their
treatment plan based on the results.  Referring ophthalmologists are aware that
retinal subspecialists work that way.

[363]     I find
there was no basis for Dr. Ross to have obtained Mr. Chen’s medical
records from Dr. Lee, and no duty on Dr. Lee to have provided them. 
The contention that the defendants breached their respective standards of care
by failing to supply (Dr. Lee) or obtain (Dr. Ross) the records prior
to the Membrane Surgery is flawed.  Moreover, and in any event, it was not
established that their doing so would have made a difference.

[364]     No
reasonable interpretation of the expert evidence, including the evidence of the
retinal subspecialist called by Mr. Chen, would support a finding that before
carrying out the Membrane Surgery Dr. Ross had a duty to order visual
field tests or take any other investigatory step to determine if Mr. Chen had
glaucoma, whether based on Mr. Chen’s C/D ratios, the appearance of his
optic disc and neuroretinal rim in the 2000 Angiogram photographs, or because
he did not have Mr. Chen’s full medical records, or on any other ground. 
I am persuaded by Dr. Finlay’s evidence that Dr. Ross was under
no duty to obtain any test other than the 2000 Angiogram before proceeding with
the operation.  Even if the 2000 Angiogram raised questions about the presence
of glaucoma, Dr. Maberley opined that it was not the retinal
subspecialist’s responsibility to orchestrate any further investigations.

[365]     Another of
Mr. Chen’s claims against Dr. Ross is that he should have observed or
somehow determined, through means that were not identified by the evidence, that
Mr. Chen’s optic nerve was more susceptible to vascular damage.  The
contention seemed to be based on the evidence of Dr. Mikelberg and
Dr. Finlay to the effect that the optic nerve of a glaucomatous patient
may be more susceptible to vascular damage during a membrane removal operation,
in conjunction with Dr. Maberley’s view that vascular changes may have
been going on in Mr. Chen’s eyes for some period of time.  However, none
of the medical experts purported to suggest that Dr. Ross was under any
such duty.  There was also a paucity of evidence that such vascular damage was
even capable of being detected; the weight of the evidence, including the
credible testimony of Dr. Ross, was to the opposite effect.  This branch
of argument was uniquely the product of counsel’s submissions and not grounded
in the trial evidence.

[366]     In closing
argument, Ms. Sood submitted that Dr. Ross’s duty of care required him
to provide Mr. Chen with a letter, presumably translated into Chinese, setting
out the material risks and the benefits of the Membrane Surgery.  Her reasoning
was that because Mr. Chen did not speak English, relying on Mr. Shen,
who is a non-medical professional, to interpret was simply not adequate.  That
struck me as a rather strange submission given Mr. Chen’s reliance on the
accuracy of Mr. Shen’s evidence about what Dr. Ross did and did not
disclose concerning the risks and benefits of the Membrane Surgery.  That
aside, Ms. Sood further asserted that Dr. Ross should have repeated
the risks and benefits just before the surgery using a translator at the
hospital.  Neither Dr. Ross nor any expert was asked whether Dr. Ross
had a duty of care along these lines.  The only evidence elicited about the
quality of Mr. Shen’s interpretation came from Mr. Chen and from
Mr. Shen himself, both of whom supported the adequacy of it. 
Mr. Chen was satisfied that his son-in-law informed him of all of
important matters and Mr. Shen said that he had performed a literal
translation.  I reject the submission that Dr. Ross had a duty to provide
Mr. Chen with a letter or a translator at the hospital to reiterate his
advice about the risks and benefits of the surgery.

[367]     I conclude
that Dr. Ross acted with the reasonable skill, knowledge, judgment, and
degree of care reasonably expected of a normal, prudent retinal subspecialist
of his experience and standing, in the particular circumstances and at the
material time period.  He did not breach his duty of care to Mr. Chen on
any ground.

[368]     I further
conclude that, with one exception, Dr. Lee acted with the reasonable
skill, knowledge, judgment, and degree of care reasonably expected of a normal,
prudent general ophthalmologist of his experience and standing, in the
particular circumstances and at the material period.  The exception
I speak of is that Dr. Lee ought to have recorded the time of day that
he measured Mr. Chen’s IOPs.   Although Dr. Lee did not meet that
expected standard, there was no cogent evidence establishing a probable causal connection
linking Dr. Lee’s breach to the loss of Mr. Chen’s vision.

[369]      Although it
is unnecessary to analyze causation in greater depth given my findings, I wish
to address it in the context of Mr. Chen’s chief allegation because it
occupied so much time and emphasis at trial.  That is, that the delayed
diagnosis of glaucoma, whether by Dr. Lee or by Dr. Ross, and thus the delayed
treatment of that disease, exacerbated the weakness and extra susceptibility of
Mr. Chen’s optic nerve brought about by his glaucoma to the point where it was
no longer robust enough to withstand the Membrane Surgery, causing his left eye
blindness to occur earlier than it would have had his glaucoma simply run its
course.

[370]     On Dr. Mikelberg’s
evidence, Mr. Chen had likely suffered from low/normal tension glaucoma
since at least 1998.  For the purposes of the following commentary, I have
assumed that the earliest opportunity Dr. Lee could have detected Mr. Chen’s
glaucomatous condition would have been March 5, 1998, being their first
appointment that year.

[371]     The
evidence does not establish whether there was any treatment available at that
time, or at any time, to manage or curtail the effects of low/normal tension
glaucoma or to otherwise preserve the fitness of Mr. Chen’s optic nerve, whether
it had become tenuous as a result of glaucoma or his retinal vascular disease. 
Dr. Mikelberg’s evidence concerning treatment for glaucoma was directed to
the management of the early stages of primary open angle glaucoma through medication
designed to reduce a patient’s IOP.  There was no cogent evidence that such
treatment, or any other treatment, would have any therapeutic effect for
low/normal tension glaucoma in the advanced stage.

[372]     The expert
evidence on the matter – minimal as it was – does not support a probable
finding that had Mr. Chen been treated for low/normal tension glaucoma or
for vascular disease, his optic nerve would have remained sufficiently robust
to withstand the Membrane Surgery, or that such treatment would have made a
difference of any kind.  I note that in asserting the contrary position,
Ms. Sood conceded that it was unknown what would have happened in terms of
the strength of Mr. Chen’s optic nerve had he started treatment for
glaucoma before the Membrane Surgery.  Similarly, there was a lack of cogent
evidence that Mr. Chen’s vascular condition could have been diagnosed at
an earlier time or that his possibly weakened optic nerve could have been
detected, curtailed or halted by any kind of medical intervention prior to the
Membrane Surgery, whether in the form of treatment for low/normal tension
glaucoma or vascular inefficiency.

[373]     Even if Mr. Chen
had succeeded in proving his primary allegation of breach against Dr. Lee (or
corresponding allegation against Dr. Ross) his claim was doomed to fail on the
causation ingredient of the test for negligence.

[374]     In the final analysis, the weight of the evidence
establishes that the acute vision loss Mr. Chen suffered on
February 5, 2000, was not causally connected to any act or omission on the
part of either of the defendant physicians.  That the timing of its occurrence
was in close temporal proximity to the Membrane Surgery was purely coincidental.

·       Informed
Consent

[375]     In his
written opinion, Dr. Finlay stated that the Membrane Surgery had an 80
percent chance of producing significant visual improvement, and a 10 to 15
percent chance of yielding a moderate improvement only.  He also opined that
the chance of risks occurring were less than between five to ten percent.  In
the course of cross-examination, Dr. Finlay agreed that the success rate
of membrane removal surgery was 80 percent.  Mr. Chen’s counsel seized on
that part of Dr. Finlay’s testimony to springboard an argument that the
success rate of the Membrane Surgery was no better than 80 percent and thus Dr. Ross
had grossly overstated the estimated success rate and, correspondingly, had grossly
underestimated the risks, to Mr. Chen.  In her closing brief,
Ms. Sood wrote that Dr. Finlay had testified that the chance the
procedure would improve a patient’s vision was 80 percent and that the risk of
complications, including blindness, was 15 to 20 percent.  In oral submissions,
she acknowledged that the risk of complications she attributed to Dr. Finlay
was inaccurate.

[376]     In my
view, Ms. Sood’s interpretation of Dr. Finlay’s testimony that the
success rate of the surgery was only 80 percent was derived from an
artificially narrow reading of his overall opinion that disregarded essential
features of it.  Careful consideration of Dr. Finlay’s evidence as a whole
satisfies me that, in agreeing to the 80 percent success figure during cross-examination,
he was not disavowing his opinion that the global success rate, by which he combined
significant and moderate improvement expectations, was 80 percent plus another ten
to 15 percent, for a total of between 90 and 95 percent.  Nor did he attempt to
distance himself or modify his opinion that the potential risks and
complications of the Membrane Surgery had been appropriately disclosed to
Mr. Chen by Dr. Ross.  Dr. Finlay’s aggregate success figure of
90 to 95 percent readily aligned with Dr. Ross’s evidence of what he
advised Mr. Chen about the prospects of surgical success.

[377]     Central to
the inquiry as to whether Dr. Ross obtained Mr. Chen’s informed
consent to the Membrane Surgery, is the determination of what was disclosed to
Mr. Chen about the nature and chances of the benefits of the surgery and
the attendant material, special and unusual risks, including their severity.

[378]     It is
common ground that although the risk of loss of vision resulting from the surgical
removal of Mr. Chen’s epiretinal membrane was statistically small, the
enormity of that potential consequence made it significant.  It was clearly a
material risk that compelled disclosure.

[379]     Mr. Shen’s
silence about Dr. Stockl’s significant role in informing Mr. Chen of
the risks and benefits of the Membrane Surgery was troubling.  As well, aspects
of his testimony that touched on the vital disclosure issue did not entirely
harmonize with Mr. Chen’s evidence-in-chief or his Discovery Testimony. 
In assessing the reliability of Mr. Shen’s evidence, I am influenced
by the testimony of Mr. Chen’s wife to the effect that, in the relevant
time, Mr. Shen was “running around in two directions”, distracted both by
Ms. Chen’s pregnancy and his father-in-law’s eye surgery.  In the
circumstances, I conclude that Mr. Shen’s testimony concerning the
disclosure made to Mr. Chen on January 26, 2000 by Dr. Ross and
Dr. Stockl of the risks and benefits attendant on the Membrane Surgery is
unreliable.  I prefer Dr. Ross’s testimony on every point of
disagreement.

[380]     I am satisfied
that on January 26, 2000, Drs. Stockl and Ross apprised Mr. Chen
of the risks and benefits of the Membrane Surgery, and did not express them in
the form of global percentage numbers of generalized outcomes.  Dr. Stockl
led the discussion under Dr. Ross’s close supervision.  The benefits and
material risks associated with the procedure were well-known to him, and under
Dr. Ross’s tutelage in the preceding seven months or so, he had routinely
advised many patients of them.

[381]     The
particulars of Dr. Stockl’s disclosure to Mr. Chen were charted
somewhat differently by Drs. Ross and Stockl.  Both of them recorded that
Dr. Stockl had advised of a 60 percent chance of two lines of
improvement.  Dr. Ross then charted a 30 percent chance of less distorted
central visual acuity; Dr. Stockl parsed out that 30 percent in greater
detail, recording that there was a 20 percent chance of regaining one line of
improvement, and a ten percent chance of no improvement.  In terms of the
chances of complications, Dr. Ross recorded that Dr. Stockl had
advised of a ten percent risk of significant complications, whereas
Dr. Stockl charted a two to three percent risk factor.  Both Drs. Ross
and Stockl charted that the risk of the “loss of eye”, meaning Mr. Chen’s
left eye, had been disclosed, and Dr. Ross confirmed that Mr. Chen
had been advised of that risk, among others, during the appointment on
January 26.

[382]     I have
no doubt that Dr. Ross made his chart entries the same day that he and
Dr. Stockl had provided the advice to Mr. Chen.  The earliest point
in time that Dr. Stockl would have added his entry to his chart was
February 28, 2000, and possibly much later in the year.  Dr. Stockl
and Dr. Ross would have advised numerous patients of the entailing risks
and benefits in the intervening period.  The gap of time between when
Dr. Stockl and Dr. Ross disclosed the information to Mr. Chen on
January 26, and the reconstruction of Dr. Stockl’s disclosure for the
purposes of his chart persuades me that his post-event notations are likely
less reliable than those recorded by Dr. Ross in his own chart that very
day.

[383]     Although
Dr. Ross candidly admitted that his notations were not a verbatim
transcription of what was said, I conclude that they more reliably capture
the information disclosed to Mr. Chen on January 26, 2000 about the
risks and benefits of the Membrane Surgery than do Dr. Stockl’s entries
which were made a longer time – possibly much longer – after the fact.

[384]     Mr. Chen’s
meeting with Dr. Stockl and Dr. Ross on January 26 was not
hurried.  The probabilities of the situation satisfy me that the articulation
by Dr. Ross and his Fellow of the risks and benefits associated with the
surgery would have had a degree of fluidity, and that Dr. Ross’s
disclosure was intended to and did supplement what had been already conveyed in
his presence by Dr. Stockl.  I find that at one or more points during the
discussion, Dr. Ross advised Mr. Chen that the overall success rate
for this routine surgery was between 90 to 95 percent, and that at another
point or points he presented the success rate as simply 95 percent.

[385]     I do not
accept that Mr. Chen (or, for that matter, Mr. Shen or Ms. Chen)
understood the outcome of the proposed surgery in terms of “success” and
“failure”, in the sense of failure being a neutral event, bringing about no
change of any kind, neither good nor bad.  Nor do I accept that
Mr. Chen had not been advised during the January 26 session that the
loss of sight – that is to say, blindness – in his left eye was one of the
risks of the procedure.  In his Discovery Testimony, Mr. Chen variously
admitted that he understood there was a small chance of going blind and a risk
of failure of the surgery.  The degree of concern he displayed by composing
additional questions for Dr. Ross and calling a family meeting to discuss
the pros and cons of the operation demonstrates that Mr. Chen was thinking
deeply about the risk and benefit analysis explained to him by Drs. Ross
and Stockl.  It also reasonably supports the inference that he appreciated that
the risk side of the equation carried the potential of a serious and, even catastrophic,
outcome, such as becoming blind in his left eye.

[386]     Ms. Chen’s
vocal opposition to her father undergoing the surgery and her warning to him
that it was “too dangerous” also reveals that she knew there was a prospect of
adverse complications arising in relation to the Membrane Surgery.  The
probabilities of the situation are that she understood from her father that one
of those potential risks was the loss of vision.  I find that
Mr. Chen understood from the information supplied to him by Dr. Ross
and Dr. Stockl that one of the attendant risks of the Membrane Surgery was
the loss of sight in the surgical eye.

[387]      Dr. Ross’s
evidence concerning the disclosure to Mr. Chen was credible and was
supported by his medical chart made in advance of Mr. Chen’s injury, the entries
in Dr. Stockl’s chart made before and after the Membrane Surgery and
Dr. Finlay’s evidence about the standard risks and benefits associated
with the operation.

[388]     A balanced
consideration of the evidence as a whole supports the conclusion that the
nature of the potential benefits and risks that could be expected, including
the risk of Mr. Chen going blind in his left eye, and the relative chances
of them occurring were accurately and sufficiently disclosed to Mr. Chen
by Dr. Ross on January 26, 2000, and that Mr. Chen provided his
informed consent to Dr. Ross to perform the Membrane Surgery.

[389]     The fact
that Dr. Ross did not advise Mr. Chen of the small increase to the
risk of a catastrophic outcome, i.e. blindness, applicable to patients who have
glaucoma, was not the product of any failing on the part of Dr. Ross or
Dr. Lee.

[390]     Given my
conclusion, it is unnecessary to go on and explore the issue of whether
Mr. Chen’s loss of sight was caused by Dr. Ross’s failure to advise
him of that risk.  For completeness, however, I wish to make these
comments in relation to causation.

[391]     Mr. Chen
was retired.  He spent his days reading, working on his computer, watching
television, and taking walks.  It was extremely important to him that he be
able to do these things and, therefore, important that he have reasonably good
central vision. He had experienced problems with his vision for years,
including visual difficulties brought on by his epiretinal membrane since at
least early 1998.  Mr. Chen had been reluctant to undergo the operation
with Dr. Chang.  Although he continued to harbour reservations about
having the surgery with Dr. Ross, by that stage, his vision had
deteriorated one full line on the eye chart and his impairment was negatively
impacting his daily life in a profound way.

[392]     Even after
he met with Drs. Stockl and Ross on January 26, 2000, Mr. Chen
continued to mull over the prospect of having surgery.  He was eventually
dissuaded from raising further questions with Dr. Ross, not by
Dr. Ross, but by Mr. Shen, his son-in-law.  He understood that Dr. Ross
had a superb reputation as a retinal surgeon and was a professor, and he
trusted him.  After thinking “deeply hard” about whether to proceed,
Mr. Chen decided to follow Dr. Ross’s advice because he could see
there was no other reasonable option to regain his vision to a level that could
improve his lifestyle, and that leaving his membrane untreated could lead to
blindness in his left eye and pose a threat to the vision in his right eye.  It
was explained to Mr. Chen, and he understood, that the upside of the
procedure was substantial.

[393]     Even if
Mr. Chen had been diagnosed with glaucoma prior to the Membrane Surgery,
the recommendation that he undergo the surgery would have remained the same. 
There was no medical alternative to address his membrane.  Ms. Sood
submits that had Mr. Chen known about his glaucoma and, thus, the
increased risk it posed in undergoing the Membrane Surgery, he would have
declined the operation, electing instead to allow the glaucoma to run its
course and lose his sight gradually from that disease.  The preponderance of
the evidence does not support that assertion.  In any event, the test is not a
purely subjective one.

[394]     Dr. Finlay
had treated 50 to 100 patients who had glaucoma and an epiretinal membrane. 
None of them refused the surgery upon being advised of the risks and benefits,
including the increased risk presented by their glaucomatous condition. 
Dr. Ross’s years of experience were entirely consistent with
Dr. Finlay’s.  There was no evidence that any reasonable person, in the
face of an expanding membrane that was causing cystoid macular edema and
deteriorating central vision in a way that depreciated the quality of life and,
if left untreated, could lead to blindness in the surgical eye and visual
compromise of the other, would refuse the surgery where the prospects for a
successful outcome were substantial.

[395]     I conclude
that a reasonable person in Mr. Chen’s position, being the average prudent
person possessing Mr. Chen’s reasonable beliefs, fears, desires, and
expectations, would not have declined the Membrane Surgery had the attendant
benefits and risks, including the additional warning of up to a one percent
increase to the risk of a catastrophic vision loss on account of having
glaucoma, been fully disclosed to him.  A properly informed, reasonable person
in Mr. Chen’s shoes would have consented to the Membrane Surgery in any
event.

[396]     Mr. Chen
has no claim against Dr. Ross based on his allegation of lack of informed
consent.

CONCLUSION

[397]    
Mr. Chen’s claims against the defendants are dismissed in their
entirety.

[398]     The defendants
are entitled to their costs at Scale B, unless there are any pertinent
circumstances that should be brought to the Court’s attention.  If a hearing is
required, counsel are to reserve a date through Supreme Court Scheduling.

__________ “Ballance
J.”__________
Ballance J.