IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121106

Docket: S087865

Registry:
Vancouver

Between:

Rudolf Rasman

Plaintiff

And

Dr. William Regan

Defendant

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Rudolf Rasman, claims damages for medical negligence
against the defendant, Dr. William Regan, an orthopaedic surgeon, based on lack
of informed consent.  On October 26, 2006, Dr. Regan performed surgery to
repair a fracture of the plaintiff’s left clavicle, or collar bone. That
procedure, an open reduction internal fixation of the left clavicle, involved
opening up the fracture, and attaching a titanium plate to the clavicle in
order to achieve union of the bone where it had fractured. On the same day, Dr.
Regan also performed arthroscopic knee surgery on the plaintiff.  Mr. Rasman’s
claim concerns only the surgery to his clavicle.

[2]            
 Mr. Rasman claims that Dr. Regan failed to inform him that there
was a material risk of injury to the brachial plexus nerve resulting in
impairment of use of his left arm, hand and fingers.

[3]            
The brachial plexus is a major nerve consisting of three trunks or cords
formed where the motor and sensory nerve roots from the cervical spine at
levels C4 through C8 and from the thoracic outlet at T1 come together.  The
three cords of the brachial plexus pass over the first rib and then run below
the clavicle.  The brachial plexus later divides into the peripheral nerves
that supply the entire arm.  The brachial plexus lies immediately alongside the
subclavian artery and vein, which supply blood to the arm.

Position of the Plaintiff 

[4]            
 Mr. Rasman maintains that if he had been warned of the risk of injury
to the brachial plexus nerve, he would not have proceeded with the surgery.  He
says that a reasonable person in his circumstances would do the same.

[5]            
The plaintiff says the injury to his brachial plexus nerve was caused by
the surgery performed by the defendant, and that he is now disabled from
performing his former trade as a metal polisher and finisher because he no
longer possesses the strength, endurance and dexterity required for that work. 
In addition to non-pecuniary damages, the plaintiff claims damages for past
wage loss, loss of future earning capacity, cost of future care and special
damages.

Position of the Defendant

[6]            
The defendant says that Mr. Rasman has not shown that the damage to his
brachial plexus was caused by the materialization of a known risk that Dr.
Regan should have disclosed.  According to the defendant, the injury to the
brachial plexus was not caused by the surgery but resulted from an unexplained
swelling or fluid accumulation that compressed the brachial plexus after the
surgery.  Alternatively, Dr. Regan says he warned Mr. Rasman of the risk of
injury to the brachial plexus and obtained the plaintiff’s informed consent. 
The defendant also submits that Mr. Rasman has failed to show that a
reasonable person in his circumstances, with full knowledge of the risks, would
not have undergone the surgery for repair of his left clavicle.  Finally, if
Dr. Regan is liable to Mr. Rasman, the defence position on the assessment of
damages is that the plaintiff has substantially recovered from his injuries,
has the capacity to perform the duties of his former trade as a metal finisher
and polisher and has suffered no past wage loss or loss of future earning
capacity.

ISSUES

[7]            
In order to succeed in this action, the plaintiff must establish, on the
balance of probabilities that:

(a)      he was not fully informed of the nature of
any material risk of the surgery for repair of his left clavicle, and any
special or unusual risks attendant on that surgery;

(b)      if he was not fully informed, that a
reasonable person in his circumstances, properly informed of the risks, would
not have proceeded with the surgery;

(c)      an undisclosed material or special or unusual
risk actually materialized; and

(d)      the
manifestation of the undisclosed risk caused the plaintiff damage.

[8]            
Because there are conflicts between the testimony of the plaintiff and
the defendant concerning the disclosure made by Dr. Regan regarding the risks
of the clavicle repair surgery, the credibility of each party is also in issue.

FACTS

The
Plaintiff

[9]            
Mr. Rasman, who was 49 years old at the time of trial, is divorced, and
has three adult children. The plaintiff learned his trade as a metal finisher
and polisher from his father, Mr. Jerry Rasman.  From 1983 until May 2005 the
plaintiff was employed in the family business, Modern Auto Plating, where he
developed particular skills performing custom metal finishing, polishing and
plating, and also held the position of estimator.  I find that Mr. Rasman
was highly skilled in his trade and that his work as a metal finisher and
polisher required strength in his forearms, hands and fingers, tactile
awareness, and a deft touch in the manipulation of power tools and the metal
objects to be polished.

[10]        
The plaintiff completed high school and briefly attended a community
college before he went to work full time at Modern Auto Plating in 1983.  Mr. Rasman
had a specialized trade from which he earned a substantial income while the
family business flourished.  For 2001 and 2002 the plaintiff reported
employment income of $154,917 and $143,000 respectively on his T1 General
Income Tax Returns.  However, following a protracted strike, Modern Auto
Plating shut down in 2005.  For that year Mr. Rasman reported employment
income of only $19,467.  The plaintiff testified that between May 2005 and
March 2006 when he fractured his left clavicle while snowboarding, he performed
freelance metal polishing work, mostly on clients’ yachts and motorcycles, for
which he was paid in cash.  Mr. Rasman has produced no receipts or invoices for
this work. He reported no income for any work other than as an athletic trainer
in his 2006 income tax return.

[11]        
Mr. Rasman also testified during his direct examination that within four
to six weeks of fracturing his left clavicle in March 2006 he was able to do
all of the metal finishing work he normally did.  Later in his direct
examination, when asked why he did not wait 14 months to have the surgery
performed in the public health care system, he responded:

Out of convenience to — you
know, to resolve it as soon as possible. And then especially with my clavicle
to have it done sooner so I could return to work.

(Proceedings
at Trial Day 2 p. 25, lines 16 – 19)

[12]        
In late 2005 or 2006 the plaintiff incorporated a company, Performance
Athletics, through which he operated an athletic training business.  For the years
2007, 2008 and 2009, he reported income from athletic training of $23,200,
$19,550 and $15,000 respectively.

[13]        
Mr. Rasman is an accomplished athlete with a keen interest in
sports.  Before his surgery he was a competitive snowboarder, boxed three times
a week, and participated in a variety of other sports, including weight
training, martial arts, rock climbing, running, surfing, swimming and paddle boarding.
He continues to snow board, although not as aggressively as he did prior to
his surgery. He no longer boxes, or participates in other contact sports, but
still does some surfing and stand up paddling.

The Defendant

[14]        
The defendant, Dr. William Regan, completed his residency in orthopaedic
surgery in 1986.  He is a fellow of the Royal College of Surgeons (Canada) in
orthopaedic surgery.  Much of his clinical practice involves reconstruction of
the hand and arm.  Dr. Regan is also an Associate Professor in the orthopaedics
division of the Faculty of Medicine of the University of British Columbia.  As
part of his practice, he conducts repairs to the clavicle.  However, because
nonunion of the clavicle is an uncommon problem, he only performs the operation
he conducted for Mr. Rasman one to three times a year.

[15]        
About 40 percent of Dr. Regan’s clinical practice is through the Cambie
Surgery Centre, a private surgical centre that serves both patients referred by
Work Safe British Columbia and ICBC and private patients who pay for the full
cost of their surgery.  Dr. Regan conducts the remaining 60 percent of his
surgical practice through the public health care system.

[16]        
The Specialist Referral Clinic is a facility associated with the Cambie
Surgical Centre.  Dr. Regan explained that the Specialist Referral Centre was
designed to offer a service to patients who wanted a second opinion on a
surgical procedure, wished to expedite their surgery, or did not believe they
would get the care they wanted through the public system.

[17]        
Mr. Rasman came to the Cambie Surgical Centre as a private patient.

The Plaintiff’s
Prior Medical History

[18]        
In or about 2000, the plaintiff suffered an injury to his right
shoulder, an acromioclavicular separation, grade three, which was managed
conservatively, without surgery.  That injury was aggravated by a car accident
which occurred in 2004.  By the time the plaintiff first saw Dr. Regan on April
6, 2006, his right shoulder was asymptomatic, aside from some “clicking” in the
right acromioclavicular joint.

[19]        
On March 12, 2006, the plaintiff broke his left collarbone while
snowboarding at Whistler, British Columbia, when he collided with a skier.  On
the same day, he was treated at the Whistler Healthcare Centre, where the
radiologist reported that the plaintiff sustained a fracture of the lateral third
of the left clavicle.

[20]        
The plaintiff sought treatment at the Cambie Surgery Centre.  Mr.
Rasman’s uncle, who is an orthopaedic surgeon practising in Slovenia, had
reviewed the x-rays and recommended the plaintiff obtain the best available
orthopaedic surgeon for surgical management of the fracture to his left
clavicle.

[21]        
Dr. Regan first saw the plaintiff on April 6, 2006, about three and a
half weeks following the ski injury.  The defendant’s consultation report for
April 6, 2006 includes the following:

His
pain is settling and he has full function in his shoulder.  At this point in
time, we would be taking down excessive union of the fracture as it is
clinically united.  I have asked to wait for a few weeks, see how the fracture
responds to conservative care, and if indeed he is unhappy with the unsightly
bump or there is pain, then we would be happy to perform an osteotomy and
fixation of the clavicle fracture.  He had a clear understanding of the risks
of surgery including that of infection, nonunion and continued malunion with
numbness in the anterior chest wall.

[22]        
On May 19, 2006, Dr. Regan ordered a CT scan of the plaintiff’s left clavicle,
which was performed on July 20, 2006.  The radiologist reported an extensively
comminuted fracture of the left clavicle demonstrating no evidence of bony
union.

[23]        
On October 4, 2006, Mr. Rasman signed a Cambie Surgery Centre consent
form, the relevant provisions of which are as follows:

Consent Form

I hereby authorize and request
Dr. W.D. Regan, along with any assistants he/she feels necessary, to perform
upon me the following treatment, procedure or surgical operation(s):

Open
reduction internal fixation left clavicle plus iliac crest;

Bone
grafting L iliac crest + arthroscopic knee surgery partial medial and lateral
meniscectomy right knee.

…

The
nature of the planned operation has been thoroughly explained to me and I have
decided to proceed with this procedure over other alternate methods.  I
understand that the practice of medicine and surgery is not an exact science
and I acknowledge that no guarantees have been made about the results of the
operation or procedure planned.  Furthermore, the risks and complications
inherent in the operation have been explained to me and I accept these.

…

I
have read the above information, and understand its contents; I consent to the
surgical procedure.

[24]        
The plaintiff was experiencing right knee pain and requested that the
knee surgery be performed at the same time as the repair of his left clavicle.

[25]        
Dr. Regan’s note of his consultation with the plaintiff on October 4,
2006 includes the following record of his discussion with the plaintiff
concerning the left clavicle repair:

I have reviewed with Rudi who
has had a CT scan done on his clavicle on the right, demonstrating a fracture
of his left clavicle with nonunion.  He would like this surgically
reconstructed.  We will need to re-break this and correct the alignment,
followed then by plating with a titanium plate …

He
has been warned that he will likely have some numbness in the anterior aspect
of his chest wall as a result of the incision through the sensory nerves.  He
will need about six to eight weeks for this to heal, with serial x-rays done to
ensure this is united.

[26]        
Neither the consent form nor Dr. Regan’s consultation reports of April 6
and October 4, 2006, make any reference to the risk of brachial plexus nerve
injury.

[27]        
At trial, Mr. Rasman testified that Dr. Regan informed him that the
risks associated with the left clavicle surgery were the risk of death from
anesthesia, the risk of infection, the risk that the bone might not heal and
that a bone graft would be necessary, and the risk that the incision could
cause numbness to sensory nerves in the chest area.

[28]        
In his direct examination, Mr. Rasman testified that Dr. Regan never
discussed with him the risk of injury to the brachial plexus or paralysis,
numbness or tingling in his arm, hand or fingers:

Q       And what did he say, if anything, with respect
to other nerve networks being involved or being at risk in surgery?

A        No, risk involved.  It never was discussed
that I would ever have any problems with my fingers, any strength issues, none
of that was discussed the whole purpose of doing the surgery was to correct my
clavicle to bring me back to a normal state.  I was never informed of any risks
involved that would compromise my strength that I may end up with a side effect
as a result of the surgery. Because, you see, before I went into the surgery
except for having extra movement there where I felt weaker I was strong everywhere
else.  My grip strength was strong, my forearm, my back, everything.  It’s just
— it’s very hard to describe but it was like, you know, I do something like
this and I just feel that move a little bit, you know.  It was just an odd
feeling having that.

…

Q       Now, are there any other risks that you say
Dr. Regan failed to advise you of?

A        Compression of my brachial plexus, loss of my
external — the — there’s a pronator muscle by the forearm by the elbow, the
inside.  I don’t have that.  Compromised my muscle in my back called the
supraspinatus.

Q       Now, if you had known about the risk of a
brachial plexus nerve injury or nerve injury affecting your arm, hand and
fingers how — would you have had the surgery?  What would have been your
thoughts?

A        If I knew that I — there was any risk that I
would have a chance of partial paralysis, numbness — permanent numbness,
tingling, anything like that I wouldn’t have had the surgery because I wasn’t
compromised strength-wise for my work.  I just had this extra movement.  Just
like with my separated shoulder.  I have a little bit of laxity in my right
shoulder but it didn’t affect me and doesn’t affect me in any other way.

(Proceedings
at Trial Day 2, p. 29, line 43 to p. 30, line 14; p. 30, line 24 to line 43)

Material Risk of Injury to
Brachial Plexus

[29]        
Dr. Drew A. Bednar, the plaintiff’s expert in orthopaedic surgery,
provided his opinion that surgical repair for nonunion of the clavicle is
generally known to put the brachial plexus at risk and that the risk of nerve
injury in such surgery should be discussed with the patient.

[30]        
The defendant’s expert orthopedic surgeon, Dr. Michael McKee, who has
extensive clinical experience and a particular research interest in the  repair
of clavicular fractures, gave evidence that it is his practice to describe to
patients the rare but potential risk of injury to the brachial plexus with
resulting numbness or paralysis in the hand.  Dr. McKee also testified in
cross-examination that he would ask questions about the patient’s occupation
and recreational activities because that information often has significant
implications for what he is going to do to the patient.  As he explained, a
small amount of fine motor loss might be extremely important for a concert
pianist while it would be irrelevant to a worker on an oil rig.

[31]        
I find that the risk of injury to the brachial plexus and the potential
for nerve damage  impairing the plaintiff’s use of his left arm, hand and
fingers was a material risk of the left clavicle repair surgery, which Dr.
Regan had a duty to disclose to the plaintiff.

[32]        
There is a dispute about whether Dr. Regan knew that Mr. Rasman was a
metal polisher. The plaintiff testified that Dr. Regan knew he did metal
finishing.  Mr. Rasman said that on one occasion in the late spring of
2006 when he and the defendant were outside the clinic, they talked about Dr.
Regan’s red sports car and how Mr. Rasman could improve its metal trim.  Dr.
Regan denied that he owned a red sports car and did not recall the
conversation.

[33]        
Dr. Regan understood that Mr. Rasman was an athletic trainer and that he
was an active, competitive athlete.  He testified that Mr. Rasman never told
him that he was a metal finisher or polisher.  On the orthopaedic’s patient
information form, which Mr. Rasman completed before his first meeting with Dr.
Regan on April 6, 2006, he described his occupation as “Athletic Trainer Self
Employed”.

[34]        
On the patient registration form Mr. Rasman completed for the Specialist
Referral Clinic on or about October 4, 2006, prior to his surgery on October
26, 2006, Mr. Rasman identified his employer as Modern Auto Plating.

[35]        
I find Dr. Regan was unaware of the plaintiff’s occupation as a metal
polisher and finisher, or the extent to which the plaintiff depended upon his
arm, hands and fingers in manipulating parts and tools when performing metal
polishing and finishing work.  The defendant testified that if he had known
that Mr. Rasman was a metal polisher it would not have made any difference to
his approach to the discussion of the risks of surgery.

The Surgery

[36]        
Dr. Regan, assisted by Dr. Michael Wilkinson, performed the surgery to
repair the plaintiff’s left clavicle on October 26, 2006, at the Cambie Surgery
Centre.

[37]        
In his operative report, dictated on the same day he performed the
operation, Dr. Regan said this:

We were careful as we exposed
the nonunion site, not to violate the brachial plexus beneath it.  There was a
large butterfly fragment after we used rongeurs to tease off the fragments and
we removed the butterfly fragment with cutting cautery and sharp dissection. 
There was no violation of the neurovascular structures.  We osteotomized the
clavicle to allow it to slide and bring it out to length.  We then contoured a
seven hole dynamic compression plate.  It was secured to the shaft of the
clavicle.  We further osteotomized large bump following positioning to insure
that the clavicle was smooth.  There was heterotopic bone and butterfly
fragments that were removed that were then used as bone graft material and as a
result, we did not need to go to the iliac crest for bone grafting. 

An
excellent purchase was achieved on our fixation.

[38]        
Both Dr. Regan and Dr. Wilkinson testified that there was no damage to
the brachial plexus or subclavian artery during the surgery.

[39]        
Following the surgery, the plaintiff was taken to the recovery room. 
Nurse Hills, the recovery room nurse, testified that her post-operative
neurovascular assessments of the plaintiff were normal.  That evidence is
consistent with the entries she made following the surgery on the neurovascular
flow sheet, which showed normal colour, warmth, sensation and movement in the
plaintiff’s left hand for each of the several assessments she performed prior
to Mr. Rasman’s discharge.

[40]        
Dr. Regan testified that he also performed a post-operative
neurovascular assessment of Mr. Rasman in the recovery room.  He testified that
it was his standard practice to do so and that he would have both conducted
physical tests and made inquiries of the plaintiff to determine whether he was
experiencing any numbness, tingling or change to the functioning of his
shoulder, arm and hand.

[41]        
Mr. Rasman recalled waking up and seeing Dr. Regan still wearing his
surgical mask.  He recalled asking Dr. Regan how the surgery went, and said the
defendant looked tired and a bit stressed, but aside from that everything was
fine.  When asked what he recollected of any examination conducted of him in
the recovery room, Mr. Rasman said that he recalled very little.  He did
not recall what the recovery room nurses said to him, or any other conversation
he had with Dr. Regan or the doctor assisting him.  Mr. Rasman attributed his
lack of recollection of the events in the recovery room to his sense that there
was nothing significant about his time there.  He felt fine, and was in no
pain.

[42]        
 I find that Dr. Regan did conduct a post-operative neurological
assessment of Mr. Rasman in the recovery room and that the results of that
assessment were normal.  The plaintiff does recall seeing Dr. Regan after he
awoke from surgery.  It is hardly surprising, particularly with the passage of
time, that Mr. Rasman has no specific recollection of Dr. Regan examining
him in the recovery room shortly after the operation, when he was still coping
with the effects of anesthesia.

[43]        
Nurse Hills had no specific recollection of Dr. Regan assessing the
plaintiff following the surgery.  However, she testified that Dr. Regan sees
all of his patients in the recovery room, and checks them before he leaves.

[44]        
 Dr. Regan testified that he did not record his assessment in the chart
because the results were entirely normal and it was not his pattern of practice
to record normal findings, as opposed to significant abnormalities,
post-operatively.

[45]        
I accept the evidence of Dr. Regan and Nurse Hills that it is the
defendant’s consistent practice to assess his patients following surgery and
find that he did so in this case.

Onset of Symptoms of Nerve
Damage

[46]        
Mr. Rasman testified that on the evening of October 26, 2006, following
his release from the Cambie Surgery Clinic, he experienced swelling and
tightness in his left elbow, which felt ready to burst.  Mr. Rasman said that
he called either the Cambie Surgery Clinic or the Specialist Referral Centre,
explained to the nurse what he was feeling, and was told to lower the position
of his left arm in his sling. He testified that he told the nurse that his
entire arm, and especially his fingers were really cold, that he had a little
tingling in the top of his forearm, and that his major complaint was the
pressure to his elbow.

[47]        
The plaintiff also gave evidence at trial that on the second day after
the surgery he felt numbness and tingling in his left hand down to the elbow. 
On the third day following the surgery, Mr. Rasman noticed problems with grip
strength in his left hand, and was unable to flex his biceps.

Dr. Regan’s post-operative care
of Mr. Rasman

[48]        
On November 3, 2006, Dr. Regan examined the plaintiff and arranged for a
CT scan.  According to Dr. Regan, the plaintiff stated that three days
following the surgery he had developed numbness in his forearm radiating into
his hand, and discolouration of his wrist and hand.  Mr. Rasman did not
complain of swelling in his elbow or arm.

[49]        
The CT angiogram of the thorax performed on November 4, 2006, revealed
no abnormality of the left subclavian artery or vein and no compression of the
neurovascular bundle, which includes the brachial plexus.

[50]        
An MRI of the brachial plexus performed November 10, 2006, showed no
gross abnormality, although the portion of the brachial plexus immediately
behind the plate which Dr. Regan had attached to the plaintiff’s left clavicle
was difficult to assess, due to the presence of the plate.

[51]        
A diagnostic angiogram of the left subclavian artery performed on
November 24, 2006, was normal, with no evidence of compression.

[52]        
Dr. Regan testified that this was the first case he had encountered in
his 20 years of practice where a patient who was normal when he left the
surgical facility presented three days later with the plaintiff’s complaints of
nerve injury.  Dr. Regan said he had no idea how this could have occurred and
therefore sought expert opinions on how to manage the plaintiff’s case.

[53]        
During November and December 2006, Dr. Regan referred Mr. Rasman to Dr.
Fry, a vascular surgeon, Dr. Travlos, a specialist in physical medicine,
rehabilitation and electro-diagnostics, Dr. Zwimpfer, a peripheral nerve
surgeon, Dr. Clarke, a neurologist, and Dr. Hawkins, an orthopaedic surgeon, in
an attempt to determine the cause of the nerve damage to the plaintiff’s left
hand and arm and then treat the plaintiff’s symptoms.

[54]        
None of Drs. Fry, Travlos, Zwimpfer or Hawkins were called by either
party to provide expert opinion evidence at the trial of this action.  However,
their findings, observations and opinions were considered not only by Dr. Regan
in his post-operative treatment of the plaintiff, but also by the medical
experts called by each party.  Hearsay evidence of the opinions of the
specialists to whom Dr. Regan referred the plaintiff is not admissible to prove
the truth or accuracy of those opinions.  However, it is admissible to show the
sources upon which those experts who were qualified to give opinion evidence at
trial based their respective opinions.  An expert may rely on hearsay.  The
weight to be attached to an expert’s opinion may depend not only on the extent
to which the underlying assumptions have been proven by other admissible
evidence but also on the reliability of hearsay. Here, reliance by one
physician upon the opinions of other physicians is an accepted means of medical
decision-making: Mazur v. Lucas, 2010 BCCA 473 at para. 40.

[55]        
Similarly, statements made by the plaintiff and recorded in the clinical
records of the physicians who treated him and were under a duty to record those
statements in the ordinary course of their medical practice are admissible for
the fact that they were made, but not for their truth: Seaman v. Crook,
2003 BCSC 464 at para. 14.

[56]        
When Dr. Travlos first examined the plaintiff on November 10, 2006, he
noted that Mr. Rasman experienced the onset of numbness and weakness in his
left arm two days or so after surgery.  Dr. Travlos thought that the delay in
the onset of symptoms following surgery was attributable to some degree of
swelling following the surgery.  On examination, Dr. Travlos found weakness in
the biceps and pronator and definite brachial plexus weakness affecting the
motor and sensory nerves to the plaintiff’s left arm and hand.

[57]        
On November 12, 2006, Dr. Regan examined the plaintiff again.  He
thought Mr. Rasman had a post-operative brachial plexus injury that became
apparent on the third post-operative day.  On clinical examination, he found
some improvement to the plaintiff’s symptoms but noted that Mr. Rasman was
still weak and had no power in his biceps or pronator.  In consultation with
the plaintiff, he decided to wait until all of the tests were concluded before
considering exploratory surgery to the brachial plexus.

[58]        
On November 14, 2006, Dr. Steven Clarke, a neurologist, examined the
plaintiff.  Based on his examination, which included nerve conduction and
needle studies, Dr. Clarke’s impression was that the plaintiff had a sensory
and motor deficit in his left arm which was not confined to a single nerve or
root distribution.  He thought the plaintiff’s weakness was quite marked in his
biceps muscle, as well as in the wrist and finger flexors, although the
plaintiff’s deltoid and external rotators were relatively strong.  Dr. Clarke
classified the plaintiff’s sensory deficit as mild to moderate and noted that
biceps reflex was absent.

[59]        
Dr. Thomas Zwimpfer saw Mr. Rasman on November 16, 2006, and sent his
consultation report to Dr. Regan on the same day.  Based on his review of the
MRI of November 10, 2006, Dr. Zwimpfer reported that there appeared to be a
narrowing of the space behind the clavicle, with some distortion of the
brachial plexus.  However, the positioning of the metal plate made it difficult
to see the anatomy wall.  Dr. Zwimpfer diagnosed a delayed onset of left
brachial plexus injury, which he thought was not related to injury to the
brachial plexus during surgery or to the development of a hematoma.  He
suspected that there had been some distortion of the brachial plexus and that
Mr. Rasman had developed demyelination, or damage to the sheath surrounding the
nerve as well as some injury to the body of the nerve.  Dr. Zwimpfer thought that
surgery to explore the plaintiff’s brachial plexus might be necessary if there
were a progressive worsening of the plaintiff’s neurological functions.

[60]        
Dr. Regan, in consultation with the plaintiff and the specialists to
whom he had referred his patient, decided to continue with conservative
treatment in the expectation that the plaintiff’s condition would improve with
the passage of time.

[61]        
On November 21, 2006, Dr. Travlos saw the plaintiff for EMG studies.  In
his report to Dr. Regan, Dr. Travlos noted Mr. Rasman had definitely improved
since his last visit.  His strength and sensation had both improved, although
he continued to have profound weakness of his biceps and pronator.

[62]        
Dr. Travlos saw the plaintiff for follow-up on January 16, 2007.  Mr.
Rasman reported that his strength had definitely been improving.  In his
assessment, Dr. Travlos reported:

Rudi has come a long way. 
Clinically he is markedly improved from the original assessment and certainly
better than when I last saw him as well.  His sensation has improved, his
sensitivity to cold has decreased, and his strength is much better. … His
needle EMG’s are as expected.  He basically has motor function everywhere
except pronator.  Biceps are markedly improved on the last time he was seen. 
He also has more scattered acute denervation which is really what was
expected.  The previous study was done at around one month and sometimes we see
denervation occurring after that just because of the dying back phenomenon.

Overall,
I am very happy with his results.  He has come a long way and continues to
improve.  It is reasonable for him to start increasing his physical activity.

[63]        
When Dr. Travlos saw Mr. Rasman again on December 18, 2007, the
plaintiff reported that he had become increasingly fit and strong, that his
strength had improved and his numbness had reduced.

[64]        
On examination, Dr. Travlos found the plaintiff had markedly improved. 
He found that the plaintiff’s pronator, which was completely denervated
previously, was starting to renervate.  Although his muscle bulk in the arm was
still reduced, his strength was near normal.  Dr. Travlos thought the plaintiff
had another eight to 10 months of neurological recovery and that he would
likely have further functional recovery for at least another year after that.

[65]        
Dr. Travlos saw the plaintiff for the last time on September 8, 2008. 
He provided the following assessment:

Rudi has done dramatically
well over time.  He is coming up to two years since the events began.  His
motor strength and function has improved, as has his sensation.  He essentially
has had renervation to all areas.  He still has evidence of peripheral
neurologic abnormality, but this was relatively mild in most areas.  The only
muscle that remains severely affected is the pronator.  Nevertheless, he does
indeed have functional motor units within the pronator, but these were fairly
sparse and the motor units very large, indicating limited recovery.  Other than
that, the rest of the muscles, although affected, had fairly good function.

It
is likely that Rudi’s neurologic recovery has come to an end. He will not
likely improve further.  He may still bulk up in terms of muscle bulk and may
improve on endurance.  Nevertheless, he will be left with restrictions in
endurance and power and he will find that after a lot of physically demanding
upper body work, his arm will fatigue.

[66]        
Dr. Regan last saw Mr. Rasman in January 2008, when the plaintiff
consulted him about the removal of the plate, which was causing him some
irritation. The defendant recommended that the plaintiff defer the removal of
the plate for another 12 months, because he thought there was some risk that
the procedure might interfere with Mr. Rasman’s recovery.

[67]        
In early December, 2008, the plaintiff had the plate removed by his
uncle in Slovenia, without incident.

[68]        
At trial, the plaintiff did not allege that Dr. Regan was negligent in
any aspect of his post-operative care. In the opinion of Dr. Bednar, the
plaintiff’s expert in orthopaedic medicine, Dr. Regan’s post-operative care and
advice were appropriate. Dr. McKee, the defence expert in orthopaedic surgery,
shared that opinion.  As Dr. McKee explained, once informed of Mr .Rasman’s
complaints of neurological deficits, Dr. Regan promptly examined the plaintiff,
referred him to leading specialists, and ordered the necessary medical imaging
studies. When those studies showed no continuing compression of the brachial
plexus, Dr. Regan correctly chose conservative treatment, rather than surgical
exploration of the brachial plexus nerve.

[69]        
Dr. Regan was unable to determine the cause of the plaintiff’s brachial
plexus injury.  His “best guess” was that it may have resulted from
post-operative swelling.  He acknowledged this was a complication which had
occurred during the 30-day peri-operative period, but did not think that it was
a direct result of the surgery.

The EXPERT Medical
Evidence

Dr. Drew Bednar

[70]        
The plaintiff’s expert in orthopaedic surgery, Dr. Bednar, thought that
the delayed onset of the plaintiff’s neurological deficit after surgery was not
consistent with operative trauma from either the electrocautery or from the
osteotome, the surgical device used to cut bone.  Dr. Bednar shared Dr. McKee’s
view that if there had been trauma to the brachial plexus during surgery there
would have been an immediate post-operative problem.  At page 7 of his report
of October 21, 2010, Dr. Bednar opined that “the … delayed onset of
incomplete deficit and the subsequent spontaneous and almost complete recovery
is most consistent with a stretch injury to the brachial plexus in the
musculocutaneous nerve distribution.”

[71]        
Dr. Bednar also agreed that there was no thoracic outlet syndrome as a
result of the surgery.  Thoracic outlet syndrome refers to compression of the
nerves and vessels that pass through the thoracic outlet, which is located
between the clavicle and first rib.  Dr. Bednar based that opinion on the fact
that the two angiograms and brachial plexus MRI performed following the surgery
were all normal.

[72]        
Dr. Bednar modified his opinion by his report of June 9, 2011.  He
thought the plaintiff’s neurological deficits were the result of delayed
progression of burn damage caused by the electrothermal cautery during surgery,
rather than a stretch injury. In Dr. Bednar’s opinion, the plaintiff’s brachial
plexus injury was caused by his surgery.  There was no information to suggest
there might have been anything to cause injury to the brachial plexus between
the time of the operation and the onset of symptoms.  He thought the delayed
onset of symptoms was best explained by a burn injury caused by the operative
electrothermal cautering.

[73]        
 In Dr. Bednar’s opinion, Dr. Regan met or exceeded current Canadian
standards of practice in taking steps to prevent neurological injury during the
surgery.  At page 8 of his report of June 9, 2011, he commented that Dr. Regan,
in his operating note, described taking care to avoid direct surgical trauma to
the brachial plexus.  The available imaging confirmed that the plate was
positioned so as to direct the fracture repair instruments and implements away
from the neurovascular structures at risk.

Dr. Donald A. Cameron

[74]        
Dr. Donald A. Cameron, the plaintiff’s expert neurologist, provided an
opinion dated October 11, 2011.  He noted there was no evidence of neurological
deficit involving the left shoulder or brachial plexus before the October 26,
2006, surgery.  Dr. Cameron opined that Mr. Rasman probably suffered a
compression type injury during the surgical repair of the left clavicle.  There
was no history to indicate that Mr. Rasman had suffered injury to the brachial
plexus at any time before or following the surgery of October 26, 2006.

[75]        
Dr. Cameron based his opinion on the assumption that Mr. Rasman had
reported the onset of symptoms involving the left shoulder and left arm on the
day of the surgery after he awoke post-operatively.  At the commencement of his
cross-examination, Dr. Cameron confirmed his understanding, from his
review of the medical records that Mr. Rasman had complained of neurological
deficits, including tingling and pins and needles in his left arm and hand, and
weakness in the muscles of his left arm and hand immediately following, or
within hours of the surgical repair.

[76]        
 That foundation for Dr. Cameron’s opinion is undermined by the
plaintiff’s evidence that he felt fine and was in no pain when he awoke in the
recovery room following his surgery, and that he was in no pain when he was
discharged from the clinic.

[77]        
Mr. Rasman was admitted to the recovery room at 1:22 p.m. and remained
there until his discharge at 3:10 p.m. on October 26, 2006. Nurse Hills checked
the plaintiff’s blood flow and nerve functions every fifteen minutes.  She
found his sensation and movement of the left hand and arm to be normal. Nurse
Hills testified that the plaintiff did not complain of tingling, numbness or
weakness in his left arm or shoulder. Nurse Hills said that if there had been a
complaint, she would have mentioned it to the surgeon, and would have recorded
the complaint in the chart. She did not record any complaint by the plaintiff.

[78]        
 The defendant and Drs. Travlos, Fry and Clarke,  who all saw the
plaintiff in November 2006, each recorded the plaintiff telling them the onset
of symptoms occurred either two or three days following the surgery.

[79]        
It was Dr. Cameron’s opinion that Mr. Rasman has an ongoing and
permanent significant neurological deficit due to weakness and decrease in
functional use of his left arm as a result of the brachial plexus injury he
sustained during the surgery of October 26, 2006.  He reported that Mr. Rasman
had not been able to return to his previous work as a metal finisher and
polisher, or to his previous recreational activities.  However, at trial, Mr.
Rasman testified that he has surfed, gone snowboarding and has used his paddle
board since the surgery, although not at the same level as he did prior to his
operation.

[80]        
Dr. Cameron also thought that the plaintiff suffered from acquired
thoracic outlet syndrome as a result of the surgery.  That opinion was not
shared by Dr. Bednar or Dr. McKee, or by Dr. Ho, the defence neurologist.

[81]        
When Dr. Cameron was confronted in cross-examination with the evidence
Mr. Rasman had reported to Dr. Travlos that he began to develop numbness and
tingling in his left hand two days or so after the surgery, rather than
immediately, he suggested that, to a neurologist, this was “splitting hairs”. 
That evidence was contradicted not only by Dr. Regan, but also by Dr. McKee and
Dr. Ho.  They each testified that if a patient suffered a nerve injury
during surgery, he or she would experience symptoms immediately.  Dr. McKee
explained that if a patient wakes up following surgery with a neurological deficit,
that is strong evidence that some physical injury occurred to the nerve during
surgery. The delayed onset of neurological deficit results in an entirely
different prognosis and treatment.  The nerve is physically intact.  Dr. McKee
testified that in the absence of any ongoing insult such as compression of the
nerve, the general course of action is to leave the nerve alone, recognizing
that it will recover with time.

[82]        
Dr. Cameron’s theory that the plaintiff had suffered a compression
injury to the brachial plexus nerve during surgery is inconsistent with the
results of the radiological investigations performed after November 3, 2006,
which showed no compression of the brachial plexus or subclavian artery.

Dr. Kennely Ho

[83]        
Dr. Ho, the defendant’s expert neurologist, examined the plaintiff on
July 29, 2011. He explained that for strength testing, 5 out of 5 is normal,
and that 5 – means minimal weakness.  On his examination of Mr. Rasman, Dr. Ho
found that aside from minimal weakness in the left wrist dorsiflexors (graded
as 5-/5), strength testing in all other muscle groups in the left fingers,
hand, arm and shoulder girdle was normal.  Dr. Ho also found minor
abnormalities on sensory examination of Mr. Rasman’s left hand and arm. Mr.
Rasman had no left biceps reflex. According to Dr. Ho, this was not a
functional problem, but did indicate that something may have happened at that
location in the past.

[84]        
Dr. Ho found no evidence of left thoracic outlet syndrome.  In his
opinion, there was no evidence of any direct injury or trauma to the brachial
plexus or adjacent vascular structures at the time of surgery on October 26,
2006.  Dr. Ho agreed with Dr. McKee that any direct nerve injuries, (meaning
injuries during surgery),would have been immediately detectable in the recovery
room, and that there was no evidence of any abnormal neurologic or vascular
function at that time.

[85]        
On his review of the brachial plexus MRI of November 10, 2006, Dr. Ho
concluded there was no compression of the neurovascular structures, which were
unchanged in comparison to the previous pre-operative CT scan.  In
cross-examination, Dr. Ho held to that opinion although he agreed that on
viewing the MRI it was difficult to assess the portion of the brachial plexus
obscured by the metal plate.

[86]        
In Dr. Ho’s opinion, the neurological injury sustained by Mr. Rasman
following the surgery was likely the result of increasing pressure in the
thoracic outlet behind the left clavicle caused by fluid retention and
swelling. In his direct examination Dr. Ho explained that with swelling and
fluid accumulation, you could get a gradual build up of pressure causing the
delayed development of a nerve injury.

[87]        
Dr. Ho disagreed with Dr. Cameron’s view that in determining the cause
of the injury, it is “splitting hairs” to differentiate between hours and days
for the onset of symptoms. He described the time of onset of the problems as
“very, very critical” in helping to determine their cause. While immediate
onset was consistent with a traumatic injury to the nerve, such as a cut or
burn during surgery, delayed onset suggested a different mechanism of injury.

[88]        
In cross-examination, although Dr. Ho agreed with Dr. Cameron that there
had been an injury to the plaintiff’s brachial plexus, he maintained that the
more likely cause of the plaintiff’s neurological injuries was increased
pressure on portions of the brachial plexus from post-operative fluid retention
and swelling.  He noted that the plaintiff’s symptoms began to improve after
the first week or two, likely from gradual resolution of the swelling.

[89]        
Dr. Ho concluded that Mr. Rasman was left with some nerve injury to the
left pronator teres muscle from which he has not fully recovered, although he
had made a substantial, if not complete recovery from the injury to the left
biceps and triceps muscles.  In Dr. Ho’s opinion, Mr. Rasman “has some
residual albeit very mild neurological dysfunction of his left hand and arm,
mostly of a sensory nature, which includes a very minor degree of impaired
“tactile sensory control of his left hand and arm position and movement.”

Dr. Michael McKee

[90]        
Dr. McKee is an orthopedic surgeon with extensive experience in the
treatment and care of upper extremity fractures. He has a particular interest
in clavicular fractures, and was qualified to give opinion evidence regarding
the diagnosis, treatment, follow-up and management of complications of
clavicular fractures.  Dr. McKee stated in his report and in his evidence at
trial that if the injury to the brachial plexus occurred during surgery,
whether through sharp dissection, cautery or stretching, the resulting injury
would be painful to the patient and immediately apparent in the recovery room. 
Dr. McKee assumed that Nurse Hills and Dr. Regan both examined Mr. Rasman
in the recovery room following the surgery and found no neurological deficits
to his left arm or hand.  In Dr. McKee’s opinion, that was strong evidence that
the nerve injury did not occur during the operation.

[91]        
Dr. McKee was cross-examined by plaintiff’s counsel respecting the
delayed onset of symptoms.  He gave the following evidence:

Q       Now, going back to the, then, delayed issue. 
So I take it what you are saying, though, is if you — in this case where you
see a compression injury occurring at whether it’s the evening after the
surgery or the next day, day after, that that’s something that is — you would
consider it a surgical complication of this kind of surgery?

A        I didn’t specifically say that I thought a
compression injury was occurring here, no.  But obviously there’s a time course
relationship between the surgery and the subsequent development of a
neurological problem in Mr. Rasman’s arm.  So obviously I think the two are
related, yes.  I would be speculating as to the cause.  I did not say it was
compression.

Q       Okay.  But that it appears to be a surgical
complication, you’re just not sure what kind of — what beast it is, if it’s
compression or something else?

A        Yes.  It appears that there’s a clear
relationship between the surgery and the development of the neurological
complication.  The exact diagnosis or why it happens, I do not know, and it
remains speculative.

(Proceedings at Trial Day 8, p. 23 line 46 to p. 24 line
22).

…

Q       Now, here’s another question for you:  My
understanding is that after Mr. Rasman went to Dr. Regan suffering these
symptoms and Dr. Regan said he didn’t understand what had happened, what the
cause of these were, now — but it’s obvious it’s a surgical complication; correct?

A        It’s obvious that this complication occurred
after the surgery, and so, yes, there is some kind of relationship between the
surgery and the peri-operative complication the patient suffered.

But l point out that a number of other people of a
fairly high degree of quality who saw Mr. Rasman were also not able to come up
with a clear diagnosis as to what it was that was happening to his brachial
plexus.  There was no clear diagnosis made by Dr. Regan or by anyone else.

And the general consensus from what I read in the
reports was the nerve worked after surgery, there’s no physical compression in
the space.  If we wait it out, things — things should get better, and I think
that’s what happened.

Q       All right.  But you don’t know — the thing is
those are suppositions that — it looks like one supposes that there’s no
compression of the space. You can’t say for sure, but that’s the presumption?

A        I would say that no clear diagnosis was made
by the multiple subspecialists who saw the patient, and no clear evidence of
physical compression of the space could be identified by multiple imaging
studies or by the multiple specialists who saw him.  Is it possible that there
was compression there?  Yes.  Is it likely or probable in my mind?  No.

(Proceedings at Trial Day 8, p. 38 lines 4 – 38).

…

Q       Okay.  So — but it’s not a mystery when you
see something like this after surgery.  It’s not — it didn’t — it didn’t come
out of the blue.  It’s something that related to the surgery that just
happened?

A        Well,
I would disagree.  I think this particular case is a bit of a mystery, and it
is unclear to me why this happened to Mr. Rasman.  I agree something happened. 
If you want me to say that there was a time course or a relationship between
the surgery and this complication, absolutely, but it is a mystery to me as to
why it happened.

(Proceedings
at Trial Day 8, p.39 lines 19 – 30).

DISCUSSION

[92]        
The plaintiff bears the burden of establishing that his injury was
caused by the materialization of a known risk of the surgery.  One known risk
was injury to the brachial plexus nerve by cutting, burning, compression or
stretching during the surgery.  The defendant submits that the plaintiff cannot
succeed by arguing his injury was caused by the surgery because it occurred
close in time to the surgery.

[93]        
In White v. Stonestreet, 2006 BCSC 801 at paras. 74-75, Ehrcke J.
expressed this caution about inferring a causal connection between two events
that occur close in time:

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

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

[94]        
Here, Mr. Rasman experienced no pain or numbness in the recovery room. 
The post-operative neurovascular assessments were normal.  Drs. Ho and McKee
agreed that any injury to the brachial plexus during surgery would have
produced immediate signs of neurological deficit.  Dr. Bednar also expressed
the opinion in his first report of October 21, 2010, that trauma to the
brachial plexus during surgery would have been immediately apparent.  On this
point, I prefer the opinions of Drs. McKee and Ho that the timing of onset of
symptoms of neurological deficit is critical to the diagnosis of nerve damage
to Dr. Cameron’s view that from a neurological perspective, the difference
between immediate onset and a delay of two days is “splitting hairs”.  Dr.
Cameron only offered that opinion after he was confronted with evidence of the
delayed onset of Mr. Rasman’s symptoms which undermined his assumption that the
plaintiff had experienced the onset of symptoms either immediately, or within
hours after surgery.

[95]        
I also take into account Dr. Bednar’s opinion that Dr. Regan met or exceeded
Canadian standards of practice for preventing neurological injury during
surgery. As Dr. Bednar noted, the defendant had attached the plate to the
clavicle in a position where surgical instruments were directed away from the
brachial plexus and subclavian artery and vein.  That reduced the risk of
injury to those structures.

[96]        
The plaintiff has not established, on the balance of probabilities, that
he suffered a cut or a compression, stretching, or burn injury to the brachial
plexus during the surgery performed by Dr. Regan.

[97]        
 Dr. Regan speculated that the swelling may have been induced during the
peri-operative period by some subtle movement or change in the alignment of the
healing bone of the clavicle, or may have been caused by an unrelated accident
or event which occurred during the first two or three days following the
surgery.  However, there is no evidence of any post-operative incident or
accident precipitating the onset of the plaintiff’s neurological symptoms.  The
more likely explanation is Dr. Ho’s theory of post-operative fluid retention or
swelling producing pressure in the thoracic outlet behind the left clavicle. 
The gradual build up of pressure resulted in compression to the brachial
plexus.  As Dr. Ho explained, with the passage of time the pressure reduced and
the affected areas of the brachial plexus returned to normal although the lateral
cord of the brachial plexus continued to have residual problems.  Dr. Ho’s
theory accounts for delayed onset of Mr. Rasman’s symptoms of nerve damage and
his substantial recovery of both muscle strength and sensation in his left hand
and arm over time.

[98]        
Dr. Ho agreed that the swelling or fluid retention was a post-operative
complication.  For his part, Dr. McKee acknowledged that there appeared to be a
clear relationship between the surgery and the development of the neurological
complications, although he was unable to provide an exact diagnosis for why it
happened.  Mr. Rasman had no history of injury to the brachial plexus prior to
his surgery.

[99]        
On the balance of probabilities, I find that but for the surgery, the
plaintiff would not have suffered injury to his left side brachial plexus
nerve.  Accordingly, I find that the surgery for repair of the plaintiff’s left
clavicle caused the injury to his brachial plexus.  The defendant submits that
the delayed onset of nerve damage caused by post-operative swelling of unknown
origin was not a known risk of the surgery in 2006 and that Dr. Regan had no
duty to warn of that risk.

[100]     Dr. McKee
was only able to find one peer-reviewed study in the medical literature
published in 2005, which discussed the delayed onset of brachial plexus nerve
damage following clavicular surgery.  That study involved three patients, each
of whom made a complete or near complete recovery with conservative
post-operative treatment.  Dr. McKee acknowledged that might not be the result
in every case.  In 2006, there were no reported cases in the medical literature
that discussed post-operative swelling as a cause of injury to the brachial
plexus.

[101]     The risk
of post-operative swelling causing damage to the brachial plexus nerve was not
a known risk that Dr. Regan was obliged to disclose.  However, as I have found,
the risk of the surgery causing damage to the brachial plexus nerve resulting
in impairment of the motor and sensory functions in the hand and arm was a
known and material risk which Dr. Regan had a duty to disclose.  The material
risk was injury to the brachial plexus.  In order to provide his informed
consent to the surgery, Mr. Rasman needed to know about that risk.  For a
reasonable patient in his circumstances, whether that risk might materialize
immediately following the surgery, or whether its onset might be delayed for
two to three days would be of little consequence.

[102]     To
summarize, to this point, I have found that Dr. Regan had a duty to inform Mr.
Rasman of the known risks of injury to the brachial plexus nerve.  Before
turning to the question of whether or not the defendant properly informed the
plaintiff of the risk of brachial plexus injury, it is necessary to address the
credibility of both Mr. Rasman and Dr. Regan.

Credibility of the Plaintiff

[103]     The test
for the credibility of an interested witness in cases of conflicting evidence
requires an examination of the harmony of the witness’ story with the
“preponderance of the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions”: Faryna
v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.).

[104]     Mr. Rasman
testified that Dr. Regan guaranteed that he would be "100
percent" after the surgery.  The defendant denied giving the plaintiff any
such assurance.  Dr. Regan, who, in addition to his clinical practice, is
an associate professor of orthopedics in the Faculty of Medicine at the
University of British Columbia, testified that he always tells residents that
there is no operation that cannot make a patient worse.

[105]     Dr. McKee
also gave evidence that he would never guarantee a 100 percent outcome to a
patient and that he teaches his students not to give such guarantees.

[106]     Mr. Rasman’s
own testimony that Dr. Regan explained to him the risk of the bone not
healing and the potential for a bone graft contradicts his assertion that the
defendant assured him that he would be 100 percent after the surgery. 
Furthermore the consent form signed by Mr. Rasman contains an express
acknowledgement that there is no guarantee of the result of surgery.  On the
preponderance of the probabilities I find that Mr. Rasman’s evidence that
the defendant assured him a 100 percent result is not plausible, and that Dr. Regan
offered no such guarantee.

[107]     At trial,
in his direct examination, the plaintiff testified that if he knew there was
any risk he would have a chance of partial paralysis, permanent numbness,
tingling, or anything like that, he would not have had the surgery because his
strength was not compromised for his work.

[108]     On his
discovery, Mr. Rasman testified that if he were told that there was an
extremely small risk, he “probably would have said okay to a very minor risk”. 
It was then put to Mr. Rasman that he probably would have had the surgery.  His
answer was “It’s one of those things, you know, you don’t know; right?  Kind of
20/20 hindsight.”

[109]     At trial,
Mr. Rasman acknowledged that he gave those answers on discovery but did not
accept they were true, on the ground that the discovery was very stressful.

[110]     On
discovery, Mr. Rasman also said that if he had been warned of the risk of
brachial plexus injury, he would have had his uncle perform the surgery.  In
cross-examination at trial, the plaintiff denied that if Dr. Regan had informed
him of that risk he would have had his uncle perform the surgery.  He said he
would have investigated exactly what the risks were.  Later, in response to a
question from the Court, Mr. Rasman testified that he would not have had the
surgery performed by either his uncle or Dr. Regan if he had been informed of
the risk of brachial plexus injury.

[111]     By paragraph
16 of his statement of claim filed May 19, 2010, the plaintiff pleaded that if
he had been properly advised, he would have opted to have a more experienced surgeon
perform the surgery, in particular his uncle.  After the plaintiff had closed
his case, he amended paragraph 16 of the statement of claim to allege that if
the plaintiff had been properly advised of the risks, he would not have
proceeded with the surgery.

[112]     At trial,
Mr. Rasman testified that personal training was a hobby and gave evidence that
for his whole life his occupation was a metal finisher and a part-time plater. 
That evidence is contradicted by the documentary record, by Mr. Rasman’s own
description of his occupation to several of his treating physicians, and by the
testimony of a private investigator, Mr. Steve Brown.  On discovery, Mr. Rasman
testified that he incorporated a company in late 2005 or 2006 through which he
operated his personal training business using the name “Performance Athletics”. 
At trial, he confirmed his discovery evidence relating to the incorporation of
that company, his role as sole director, officer and shareholder and his
description of the company’s website.

[113]     Mr. Rasman
filed income tax returns for 2006, 2007 and 2008 in which he reported earning
income only from athletic training.

[114]     In his
original statement of claim, Mr. Rasman described himself as “self-employed as
an athletic training consultant”.

[115]     When the
plaintiff’s expert in functional capacity evaluation, Dr. David McDougall,
asked Mr. Rasman to describe his occupation he said that he was a part-time
athletic trainer or athletic training consultant and then explained that
previously he had worked in the family business as a metal polisher and
fabricator.

[116]     In
cross-examination, it was put to the plaintiff that he did not tell
Dr. Zwimpfer, Dr. Hawkins or Dr. Travlos that he was a metal worker or
that the symptoms he was suffering from affected his ability to operate machinery. 
Mr. Rasman’s answer was “The topic never came up.”

[117]     The
plaintiff denied that he trained a middle-aged blond woman at the Hillcrest
Recreational Centre on October 28, 2011.  That testimony was contradicted by
the evidence of the private investigator, Mr. Steve Brown, who said that he
observed Mr. Rasman at the Hillcrest Recreational Centre on that date
demonstrating exercises to a middle-aged blond woman and making notes on a
clipboard.

[118]     Mr. Rasman
did work as a personal trainer following the closure of the family auto plating
business in 2005.  He was never able to earn anything approaching the same
level of income he generated as an estimator, metal polisher and plater while
employed by Modern Auto Plating.  By characterizing his activities as a personal
trainer as a hobby, Mr. Rasman sought to downplay his efforts to develop a
paying clientele for that work, and the fact that he held himself out to Dr.
Regan as an athletic trainer, rather than a metal finisher

[119]     Mr. Rasman
has given four different versions of the onset of his symptoms following the
surgery of October 26, 2006.  At trial, Mr. Rasman testified that when he was
discharged from the recovery room he felt fine and was pain free.  He said that
later on the day of the surgery, he experienced a bursting pressure in his
elbow.  His entire arm and his fingers were really cold and he had a little bit
of tingling in his forearm.  He said that on the day following the surgery he
could not flex his bicep and had no strength in his fingers.  By the third day
he was experiencing numbness and tingling in his fingers and had difficulty
holding a glass.

[120]     The
plaintiff reported to Dr. Cameron that immediately following the surgical
repair of October 26, 2006, he awoke complaining of left arm heaviness, tingling
and pins and needles involving the left arm and left hand and weakness in the
muscles of the left arm and left hand.

[121]     In
November 2006, Mr. Rasman reported to his treating physicians that the numbness
and tingling began two or three days after the operation.  He did not refer to
a “bursting” feeling in the elbow.  The plaintiff told Dr. Regan that he
experienced numbness three days after the operation, beginning in the forearm
and radiating into his hand.  On November 10, 2006, Dr. Travlos noted that two
days post-op the plaintiff experienced numbness and tingling in the left hand
and below the elbow and that as time progressed he also experienced some
numbness above the elbow. According to the history taken by Dr. Zwimpfer, Mr.
Rasman said initially he was not aware of any numbness, tingling or weakness,
but that he had numbness and tingling on the second day and problems with grip
strength and flexing of the biceps on the third day.  Dr. Clarke reported the
plaintiff as telling him that three or four days after surgery he became aware
of “numbness” in the volar and dorsal aspect of the left arm and hand.

[122]     In
December 2006, Mr. Rasman told Dr. Hawkins that he had a bursting sensation in
the elbow on the day after surgery, and experienced numbness and tingling the
following day.

[123]     The
defendant submits that the plaintiff’s versions of the onset of symptoms
provided during the litigation are not reliable and ought not to be believed. 
The defendant says the best evidence about the onset of the plaintiff’s post-operative
symptoms is found in the contemporaneous records made by his treating
physicians in November 2006.

[124]     On the
preponderance of the probabilities, I find that Mr. Rasman first experienced
symptoms of numbness, tingling and weakness of the muscles in his left hand and
arm two to three days after the surgery.  Had he complained of post-operative
neurological deficit immediately following the surgery and while he was in the
recovery room, those complaints would have been noted by the recovery room
nurse in the neurovascular assessments she performed prior to Mr. Rasman’s
discharge.  In order to diagnose and treat Mr. Rasman’s post-operative
complaints, it was essential for both Dr. Regan and the various specialists to
whom he referred the plaintiff to take an accurate history from the plaintiff
of the onset of his symptoms.  In November 2006, Mr. Rasman’s principal aim was
to obtain effective treatment for his post-operative symptoms.  It was in his
interests to accurately describe both the onset and the nature of his complaint
to Dr. Regan and to the physicians who were assisting the defendant to identify
the cause and determine the most effective treatment for the plaintiff’s
neurological deficit.

[125]      I find
that Mr. Rasman told Dr. Regan on November 3, 2006, that his symptoms began
about three days after surgery, and that he told each of the specialists who
saw him in November 2006 that the symptoms began two or three days after his
surgery.  The plaintiff conveyed that information to Dr. Regan and his other
treating physicians within the first two or three weeks after his surgery,
while his memory of the onset of his symptoms was fresh.  He was aware of the importance
of providing an accurate account to the physicians involved in his care.  I
find that he did so.

[126]     Mr. Rasman
testified that he called either the Cambie Surgery Centre or the Specialist
Referral Centre in the early evening of October 26, 2006, and that spoke with a
nurse there. He said that he told the nurse about the pressure on his elbow,
and she told him to lower the sling to relieve the pressure.

[127]      The
plaintiff’s cell phone records show no calls to the Cambie Surgery Centre or
the Specialist Referral Centre on October 26, 2006.

[128]     Both Nurse
Hills and Ms. Stella Custeau, who was Dr. Regan’s secretarial assistant,
testified that the Cambie Surgery Centre had a protocol in place to put
patients with post-operative complaints in touch with Dr. Regan on an expedited
basis.  That did occur on November 3, 2006, when Mr. Rasman called Dr. Regan
and arrangements were made for Dr. Regan, who was then teaching at UBC Hospital,
to change his schedule and see Mr. Rasman immediately at the UBC Hospital
emergency room.

[129]     Nurse
Hills testified that if a patient called with a post-surgical complaint, he or
she would be directed to the recovery room nurse.  The call would be charted. 
If the nurse thought the matter should be referred to the surgeon, the recovery
room nurse would either call the surgeon or direct the patient to do so.  There
is no chart note of a call from Mr. Rasman on October 26, 2006.

[130]     Mr. Zoltan
Nagy, the manager of the Specialist Referral Clinic, testified that in 2006, he
dealt with patients who telephoned the clinic.  If a patient who called raised
a medical issue, Mr. Nagy would call Cambie Surgery Centre, and have the post
operative nurse contact the patient. Mr. Nagy had no recollection of dealing
with Mr. Rasman. The Specialist Referral Clinic had no record of a call from
Mr. Rasman on October 26, 2006.

[131]      On the
preponderance of the probabilities, I find that Mr.  Rasman made no
call to complain of post-operative symptoms on October 26, 2006.

[132]      Mr.
Rasman did call the Specialist Referral Clinic on the following day.  Mr.
Rasman produced his cellular telephone account showing a call to the clinic at
3.09 pm on October 27, 2006. Mr. Nagy produced a business record of the
Specialist Referral Clinic showing that at 3.14pm Mr. Rasman was booked for a
follow-up appointment with Dr. Regan, scheduled for November 8, 2006. The
plaintiff paid his account, in the amount of $10,000 on October 27, 2006.

[133]     In cross-examination,
it was suggested to Mr. Rasman that the purpose of his call of October 27, 2006,
was to pay his bill, and to book a follow-up appointment with Dr. Regan.  Mr.
Rasman acknowledged that he had paid his bill that day, but said he was not certain
about the rest of the conversation.  The plaintiff said he would have wanted to
see Dr. Regan as soon as possible. I find that the plaintiff called the
Specialist Referral Clinic on October 27, 2006, for the purpose of paying his
account, and to make a follow-up appointment, rather than to complain of
post-operative symptoms. On the preponderance of probabilities, I find that had
Mr. Rasman complained of numbness or requested any assistance in managing his
medical condition, he would have been referred to the Cambie Surgery Center
recovery room nurse, or to Dr. Regan immediately and his complaint would have
been charted.

[134]     In
cross-examination, Mr. Rasman denied that he received chiropractic manipulations
of the spine from Dr. Erica Harris and referred to his “belief system” that the
body should not be adjusted, and that he was aware of people being paralyzed by
chiropractic treatment.  Dr. Harris gave evidence at trial based on her chart,
that she had manipulated the plaintiff’s cervical and thoracic spine on
numerous occasions.  Furthermore, her practice was to note on the patient consent
form if a patient refused or limited chiropractic manipulations.  There was no
such note on the consent to chiropractic treatment signed by Mr. Rasman. I find
that the plaintiff’s evidence on this point is not reliable and that he
consented to and received the treatment documented by Dr. Harris.

Credibility of Dr. Regan

[135]     Dr. Regan
was forthright in his testimony and readily acknowledged that his
record-keeping, particularly with respect to the disclosure of risks relating
to the clavicle repair surgery, could have been better.  He acknowledged that
the plaintiff had a peri-operative complication, that is, a complication
occurring within 30 days of the operation, and that despite his own investigation,
and the investigations of the specialists to whom he referred Mr. Rasman, he
was not able to explain the cause of the plaintiff’s injuries.  Dr. Regan’s
efforts after the surgery to investigate Mr. Rasman’s complaints and to
promptly solicit the assistance of leading specialists demonstrated a genuine
concern for his patient.

[136]    
In cross-examination, it was suggested to Dr. Regan that he gave
inconsistent answers on discovery respecting his discussion with the plaintiff of
the risks of the clavicle repair surgery.  Specifically, counsel referred Dr. Regan
to the following questions and answers from his examination for discovery of
February 15, 2011:

Q:      Now, you said —
okay, now — with respect to the risks, what did you say the risks were?

A:       I disclosed that with any operation, he already had an
operation on his knee that has — had been described in the past.  He’d have a
risk of the anesthetic, including death.  He’d have a risk with the surgical
approach.  Anybody makes an incision in your skin, there’s a possibility of
infection.  There’s a risk of a hematoma forming in relationship to the
fracture itself.  With regards to the surgical field, there’s a risk of
structures that come into the field, including sensory nerves above the
clavicle that are often lacerated with the surgical approach.  You can’t avoid
that.  The risks of penetration of a drill, for example, during the course of
the surgery that may injure the nerve behind the clavicle.  There’s a risk,
since you’d be immobilized for an hour and a half, of a blood clot forming in
the great vessels of the arm.  Since we’re also, in this particular case,
possibly exposing his pelvis, there’s a risk of wound complication of his
pelvis from the bone graft site and nerve injury down in the region of his hip
as well.  And, finally, there’s an incidence of patients that develops pain
following the surgery over the plate, and the plate has to be removed later in
spite of the fact that the fracture heals.  And, lastly, in spite of all our
best efforts, there is a risk that his fracture simply won’t heal with the
surgical techniques used.  Now, I have to reread that.

(Question 79, p.14,
lines 11 – 25; p. 15, lines 1-15)

…

Q:      The question is
this:  When you went over the — and you’ve told me, you described it numerous
times here in terms of what you said about the risks in terms of under the —
the nerves under the clavicle, and here in the written section we’ve got
numbness in the chest area, okay.  That’s what the focus has been, but what I’m
— but did you at any time say, specifically, there was a risk of injury to the
nerves which affect your fine motor skills?

A:       Yes, I did.

Q:      You say you did
that?

A:       Yes.  As I
described to you already, we had a dialogue regarding this.  This is not a
one-way conversation.  I described nerves beneath his clavicle, how they may
affect his upper extremity, he asked questions, I answered them, and disclosure
of risks affecting the upper extremity and hand occurs in almost all my cases. 
I discuss that in detail with every patient.

Q:      And at that time,
October 4th, did you talk about the percentage of —

A:       Yes.

Q:      — risks?  And
what did you say?

A:       Well, as far as
risks of death from the anesthetic, I tell him I’ve never heard of any but
they’re reported in the literature.

Q:      What about risks
in terms of nerve damage?

A:       Risk of — risk of nerve damage above the clavicle, I would
say to him it’s very high, over 50 percent of patients complain of risks to the
clavicle — excuse me, of risks to sensory nerves above the clavicle.  As far
as injuries to nerves below the clavicle, I would have told him I’ve never had
an experience myself, but it is sprinkled through the literature and can occur,
although it is rare.  But it can occur and affect your hand function.  As far
as complications of hematoma and wound infection, I had never had a case of it
myself, but they do exist and he has to know about them.  As far as upper
extremity, deep venous thrombosis, they’re also reported in the upper extremity
literature, but I’ve never had a case of it myself.  As far as injury to
neurovascular structures and wound complications on the hip, I’ve never had any
significant injuries myself, but they, again, are sprinkled through the literature. 
So the overall risk to those structures is relatively low, but they do exist.

(Questions 205 – 209, p. 43, lines 8 – 25; p. 44,
lines 1 – 25;
p. 45, lines 1 – 7)

[137]    
In response to plaintiff’s counsel’s assertion that he had given
different answers to the same question, Dr. Regan gave this answer:

A:       In the first
instance, you did ask me to list the risks of the surgery, which I did, and I
did tell you at that time this was an active dialogue between, me, the surgeon,
and Mr. Mr. Rasman, the patient.  In the second instance, you asked
me what the two things, what the relative risk was as well as what would be the
effect of one of those risks which would be hand function.  And so that was a
different question you asked me, and so I gave you a different answer, and both
of those combined are how I approach a patient.  You are basically going
through the dialogue that I approach with a patient.

We discuss a risk.  We go over it a little bit.  We go
on to another one.  We go over it a little bit, and we proceed through that in
that manner.  So really, the risk-benefit discussion that I have with patients
is an amalgamation of both of those aspects of the examination for discovery.

(Proceedings at Trial Day 7 p. 77, line 37 to p. 78,
line 9)

[138]     I find
that Dr. Regan gave a fair explanation of his discovery evidence and that
his answers to the two questions put to him were not inconsistent.  Furthermore
Dr. Regan’s testimony at trial respecting his pre-operative discussions
with the plaintiff, his performance of the surgery, the timing of the
plaintiff’s post-operative complaints and his efforts to investigate and
determine the cause of Mr. Rasman’s post-operative neurological deficit
was consistent with his discovery evidence as read in by plaintiff’s counsel.

[139]      Dr. Regan,
like Mr. Rasman, is an interested party.  Nonetheless, in both is
examination-in-chief and cross-examination his responses to counsel’s questions
were direct, and matter of fact.  He was neither evasive, nor argumentative.  I
find Dr. Regan to be a credible witness who did his best to respond
fairly, and in a professional manner, to the questions put to him in both direct
and cross examination.

Was the
plaintiff informed of the risk of injury to the brachial plexus and of nerve
damage impairing of use of his arm, hand and fingers?

[140]     In
obtaining the consent of a patient to a surgical operation, a surgeon must
disclose to the patient the nature of the proposed operation, its gravity, any
material risks or any special or unusual risks attendant upon the performance
of the operation.  The scope of the duty of disclosure and whether or not that
duty has been breached must be decided in relation to the particular
circumstances of each case: Hopp v. Lepp, [1980] 2 S.C.R. 192; 112
D.L.R. (3d) 67 at 81.

[141]     Mr. Rasman
says that the risk of injury to his brachial plexus ought to have been
disclosed and that Dr. Regan, in breach of his duty, failed to disclose that
risk.

[142]    
The plaintiff testified that Dr. Regan warned him of the risks of the
bone not healing and the potential for a bone graft, numbness in the region of
the incision, the chance of infection, and the chance of death through
anesthesia, which Mr. Rasman recalled as a one percent chance of death.  Mr.
Rasman also remembered that Dr. Regan drew a diagram for him while he explained
the surgery, but said he had not been able to locate that document.

[143]    
Dr. Regan did not have a particular memory of discussing the surgery and
its risks with Mr. Rasman.  He based his testimony on his standard pattern of
practice. Dr. Regan gave the following evidence describing his pattern of
practice in drawing a diagram for the patient and then discussing with the
patient the risks of surgery:

A        Yes.  What I do with patients is, I draw them
a diagram of the pathology that they present with; in this particular instance
his fractured clavicle.  In doing so, I’d draw the shoulder and the fracture,
and then discuss the implications of  the surgery.

I first would go over the general implications of
anybody having an operation which is the anaesthetic, which can cause death,
and then specifically to the operation of the clavicle I would draw out the
picture as I have here and relate to him how this would be approached.  There would
be an anterior incision in front of the clavicle.  I would describe the fact
that this is the only way to fix these and that when you make this incision of
course there can be an infection arise from that that may have to be drained. 
And the dissection that will be done to expose the fracture, there can a
hematoma formed that has to be excised. 

I described then that we would be opening up the
fracture fragments and placing a plate on there, usually a six-hole plate that
can be contoured to the bone.  In doing so, we have to cut through a muscle called
the "platysma muscle," and as you do that there are sensory nerves of
course over the front of the surgical field that are brought into play, and
these are often lacerated, and these will leave the patient with some numbness
on the chest wall.

When you expose the fracture and put the plate on,
you’re putting three screws on either side of the fracture, and there are
nerves that come into the surgical field from behind the fracture, and these
nerves can be injured with an inadvertent penetration of a drill, for example,
and whatnot, and this would injure a nerve behind that possibly causing a
neurological deficit into the arm, elbow, wrist or hand depending on which
nerve had been injured.

In addition, the fracture itself, in spite of our best
efforts, may not heal.  There may be inadvertent trauma after the surgery that
will result m having to redo the operation or the plate may break.

In addition, the plate is often a very irritating
focus, concern on the skin.  So it often has to be removed later, and the
patient is lying recumbent for an hour and a half to two hours to do this; so
the great vessels that we described earlier in this proceeding may be –there
could be stasis of those; there could be a blood clot in the arm requiring
evacuation.

And finally, in this particular case, we were planning
on taking a bone graft from the iliac crest, and if that is approached then
there is a risk to some nerves in the pelvic area as well as infection down the
iliac crest.

So those
would be the things I would have discussed.  I would have discussed that we
have to follow him later for six weeks with serial X-rays to allow this to heal
and go through that rehabilitation phase.

(Proceedings at Trial Day 6
p. 13, line 16 to p. 14, line 31)

[144]     Dr. Regan
said this was his usual pattern of practice and that he followed that pattern
of practice when he explained the surgery and its potential consequences to Mr.
Rasman on April 6, 2006.  Again relying upon his pattern of practice, Dr. Regan
testified on his direct examination that on October 4, 2006, he would have
either reviewed with Mr Rasman the diagram depicting the left clavicle surgery
he had provided to the plaintiff on April 6, or he would have drawn another
diagram, and discussed again all of the risks of the shoulder surgery, as well
as those relating to the knee operation. In cross-examination, Dr. Regan
remained adamant that in keeping with his usual practice, he had disclosed the
risk of nerve damage affecting hand function.

[145]    
The Court may rely upon the evidence of a credible professional
respecting his or her standard practice.  As the B.C. Court of Appeal stated in
Belknap v. Meakes (1989), 64 D.L.R. (4th) 452 at 465-466:

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

  Wigmore: On Evidence,
vol. IA (Boston: Little, Brown, 1983) [P. Tillers, ed.] states that there is no
reason why habit should not be used as evidence either of negligent action or
of careful action (para. 97), and that habit should be admissible as a
substitute for present recollection. Phipson on Evidence, 13th ed.
(London: Sweet & Maxwell, 1982) [J.H. Buzzard, R. May & M.N. Howard,
eds.] para. 9-22, reaches a similar conclusion.

[146]     Dr. Regan
gave consistent evidence on discovery and at trial respecting his pattern of
practice in discussing the risks of surgery.

[147]     Mr. Rasman
testified that he was aware of risks that were not noted in Dr. Regan’s
consultation reports, including the risks of bleeding and of complications from
the general anesthetic.  He acknowledged that every risk other than the risk of
injury to the brachial plexus was disclosed to him.  In contradiction to his
assertion that Dr. Regan had assured him that the operation would be 100
percent successful, he agreed in cross-examination that Dr. Regan told him that
the surgery might not be successful.  Mr. Rasman’s testimony, including his
acknowledgement that Dr. Regan drew a diagram for him while he explained and
discussed the surgery, provides some support for Dr. Regan’s evidence that he
followed his usual pattern of practice in disclosing the material risks of the
surgery to Mr. Rasman.

[148]     At trial,
the plaintiff maintained that he would not have had the surgery if he thought
it would impair his ability to do metal polishing work.  Dr. Regan was not
aware that the plaintiff had earned his living through metal finishing and
polishing.  He understood Mr. Rasman to be an athletic trainer.  Mr. Rasman
made no inquiries about the potential effect of the surgery on his ability to
perform metal polishing work.  In these circumstances, where the plaintiff had
identified himself as an athletic trainer, Dr. Regan was under no duty to make
further inquiries about his occupation.  Furthermore, Dr. Regan testified that
if he had known that the plaintiff was a metal polisher, it would have made no
difference to his discussion of the risks of surgery.

[149]     I find
that Dr. Regan followed his usual pattern of practice in this case and that he
did disclose to the plaintiff the risk of injury to the nerve structure behind
the clavicle and the potential for neurological impairment of the arm, elbow,
wrist or hand.  I find that Dr. Regan fully informed the plaintiff of the
material or special risks of the surgery.

Would a
reasonable person, properly informed and in the plaintiff’s circumstances have
proceeded with the surgery?

[150]     If I am
wrong in finding that Dr. Regan met his duty of disclosure and obtained the
informed consent of the plaintiff to the surgery, then I would find, for the
reasons that follow, that the plaintiff has failed to establish on a balance of
probabilities that a reasonable person, in his circumstances, properly informed
of the risk of injury to the brachial plexus, would not have proceeded with the
left clavicle surgery.

[151]     In Reibl
v. Hughes (1980), 114 D.L.R. (3d) 1 at 16, the Supreme Court of Canada held
that the court must decide “what the average prudent person, the reasonable
person in the patient’s particular position, would agree to or not agree to, if
all material and special risks of going ahead with the surgery or foregoing it
were made known to him.”

[152]    
In Arndt v. Smith, [1997] 2 S.C.R. 539 at para. 6, the Court,
after referring to the modified objective test stated in Reibl, said
this:

… The test enunciated relies on
a combination of objective and subjective factors in order to determine whether
the failure to disclose actually caused the harm of which the plaintiff
complains.  It requires that the court consider what the reasonable patient in
the circumstances of the plaintiff would have done if faced with the same
situation.  The trier of fact must take into consideration any “particular
concerns” of the patient and any “special considerations affecting the
particular patient” in determining whether the patient would have refused
treatment if given all the information about the possible risks.

[153]    
In Arndt at para. 9, Cory J. identified the aspects of the
plaintiff’s personal circumstances that should be attributed to the reasonable
person under the modified objective test:

…There is no doubt that
objectively ascertainable circumstances, such as a plaintiff’s age, income,
marital status, and other factors, should be taken into consideration. 
However, Laskin C.J. didn’t stop there.  He went on and stated that “special
considerations” affecting the particular patient should be considered, as
should any “specific questions” asked of the physician by the patient. In my
view this means that the “reasonable person” who sets the standard for the
objective test must be taken to possess the patient’s reasonable beliefs,
fears, desires and expectations.  Further, the patient’s expectations and
concerns will usually be revealed by the questions posed. Certainly, they will
indicate the specific concerns of the particular patient at the time consent
was given to a proposed course of treatment.  The questions, by revealing the
patient’s concerns, will provide an indication of the patient’s state of mind,
which can be relevant in considering and applying the modified objective test.

[154]     Mr. Rasman
had received advice from his uncle, an orthopaedic surgeon, that the fracture
to his left clavicle should be surgically repaired and that he should seek out
the best orthopaedic surgeon he could find to perform the surgery.  Mr. Rasman
was prepared to pay for private surgery at a cost in excess of $10,000 in order
to avoid waiting up to 14 months in the public system.  He was especially keen
to have the clavicle repaired so he could return to work.

[155]     The
fractured clavicle was not causing Mr. Rasman pain when he consulted with Dr.
Regan.  However, I find that Mr. Rasman regarded the condition of the clavicle
as an irritant, that it caused him discomfort, and was a source of concern that
he wished to rectify promptly.  Mr. Rasman, in his direct examination,
testified that when he extended his arm it was really noticeable that he had a weakness
in the area of the left clavicle. In cross-examination the plaintiff said  he
knew that with non-union of the fracture his clavicle would not be as strong,
and said that he felt pressure there when he was active.

[156]      When Mr.
Rasman made his second visit to Dr. Regan on May 19, 2006, Dr. Regan noted that
the plaintiff “has ongoing problems referable to a fractured clavicle”.  Dr. Travlos,
referring to the pre-operative history of the fracture, reported that “Mr. Rasman
noted that his shoulder never quite felt right and had a large deformity”.  Dr.
Clarke noted that before the surgery the plaintiff felt movement in the
clavicle with some activities and also felt like the bone was pushing onto his
skin.

[157]     I find
that the left clavicle was sufficiently troublesome to Mr. Rasman that he
wished to have it repaired, and was prepared to pay for private surgery in
order to have those repairs performed promptly.

[158]     Mr. Rasman
was prepared to proceed with the knee surgery, as well as the clavicle repair,
even though he was aware the knee operation might not be successful.  He also
understood that he might require a bone graft if the clavicle bone did not
heal.  All of this suggests he was not timid about accepting the risks of
surgery.

[159]     Mr. Rasman
developed a rapport with Dr. Regan and trusted him to perform the operation. 
That trust endured for at least two years after the surgery when Mr. Rasman
accompanied his son to a consultation with Dr. Regan regarding the surgical
repair of his son’s broken collarbone.

[160]     Mr. Rasman
participated in sports involving significant risk of injury, including boxing,
martial arts, surfing and snowboarding, and testified that he frequently
snowboarded without a helmet.  He also described how in order to find time to
snowboard while his family was young, he would go to Cypress Bowl at night,
hide in the trees until the trails closed and the ski patrol had completed
their final sweep, and would then ride the half pipe until midnight or 1:00
a.m.  I agree with the defendant’s submission that this conduct discloses a
significant tolerance for risk.

[161]     In 2005,
Mr. Rasman signed a consent form for chiropractic treatment which identified
the risks of disc injuries, injury to the vertebral artery with the possibility
of stroke, and rarely, paralysis and death.  The chiropractor, Dr. Harris,
testified that the plaintiff received chiropractic treatment which involved the
risks described in the consent form.

[162]     As part of
the investigation of his post-operative symptoms, Mr. Rasman signed a consent
form for a sub-clavian angiogram which identified a risk of stroke.  The
plaintiff also understood that this procedure carried with it a risk to bowel
and bladder function.

[163]     If the
plaintiff had inquired about the risk of injury to the brachial plexus and the
potential for numbness or paralysis in the hand or arm, he would have received
advice that the risk was rare.

[164]     In
determining whether a reasonable person with the characteristics of the
plaintiff, if fully informed of the risk would have proceeded with the surgery,
the Court may take into account medical evidence relating to refusal rates: Truant
v. Guichon (14 August 1996), Vancouver C933748 at para. 37 (B.C.S.C.); Ralston
v. Morris (24 October 1996), Vancouver C953130 at para. 49 (B.C.S.C.).

[165]    
Dr. McKee, in his report dated August 29, 2011, provided the following
evidence when asked to identify the risks associated with the surgery performed
by Dr. Regan, the risks he discusses with his patients, and the percentage of
patients who refuse surgery based on the discussion of those risks:

I
describe the risks from the anesthetic and the risks from the specific surgery.
The risks I discuss with a patient regarding the anesthetic include the risk of
death (I quote 1/40,000 for a young, healthy person), as well as heart attack,
stroke, anesthetic mishap, allergic reaction.  With regards to the clavicular
surgery itself, I describe to patients general risks including infection,
failure of the bone to heal, inability to straighten or lengthen the bone, the
potential requirement for bone graft from the hip (and its attendant
complications), the risk of local peri-incisional numbness (from the sectioning
during surgery of the small cutaneous nerves), and the risks to adjacent nerves
and blood vessels. Specifically, for clavicular surgery, I describe the rare
but potential risk of injury to the brachial plexus with resultant numbness or
paralysis in the hand. I would state that a minority, perhaps 5% of patients
with significant symptomatology, elect not to proceed following the discussion
of the potential risks. Many patients ask further questions about specific
risks that they are particularly concerned about (i.e. nerve injury) and I do
my best to explain in practical terms what this might mean. If they ask
specifically about the risk of nerve injury, I say that the risk of permanent
nerve injury in the arm or hand is very small perhaps 1 or 2%. To the best of
my knowledge, I have not had any patients defer surgery specifically for this
reason even after an in-depth discussion of what this potential risk means.

[166]     In his
direct examination, Dr. McKee testified that in general, patients who sought
clavicular repair surgery were active people who were quite eager to retain
full motion and strength of their shoulder.  In his experience, these patients
were unlikely to be dissuaded by the very low complication rates he describes
to them, even though some of the complications are severe, including the risk
of neurological complications.  On occasion, patients who were “timid”, or who
were not so sure whether they wanted the operation or not would decline to have
the surgery when they heard about potential complications.

[167]     “Timid” is
not an adjective that applies to Mr. Rasman.  Further, the plaintiff wanted to
restore his shoulder to its full strength without delay.  Mr. Rasman wished to
have both the discomfort and the deformity of his left shoulder corrected.

[168]     Dr. McKee
testified in cross-examination: “In my experience it would be relatively
unlikely for a patient to submit themselves to reconstructive surgery if they
felt their shoulder was good.  They do it when their shoulder is not good,
that’s why they want the surgery.”  Mr. Rasman was prepared to undergo
reconstructive surgery and to pay for it.

[169]     It is
unlikely that he would have done so if his shoulder was not causing him
discomfort or if he had sought the surgery for purely cosmetic purposes.

[170]     Taking
into account Mr. Rasman’s personal characteristics, including his demonstrated
tolerance for risk, and Dr. McKee’s evidence relating to patient refusal rates,
on the balance of probabilities, I find that a reasonable person with the
characteristics and in the circumstances of Mr. Rasman, fully informed of the
risks of the clavicle surgery, would have chosen to proceed with the surgery.

RESULT

[171]     Accordingly,
the plaintiff’s action against Dr. Regan is dismissed.

[172]    
Unless there are matters relating to costs which the parties wish to
bring to the court’s attention, the defendant is entitled to an order for costs,
at Scale B. If the parties wish to make submissions on costs, they may do so in
writing, through the Registry. In that event, the defendant will have 14 days
from the date of these reasons for judgment to deliver his submissions on
costs. The plaintiff will then have 14 days to deliver his submissions, and the
defendant will have a further five days for any reply submission on costs.

“PEARLMAN J.”