Date: 19990215 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA DOCKET: 92-4396 BETWEEN: DENISE SHIELDS PLAINTIFF AND: STANLEY G. SHORTT, GREATER VICTORIA HOSPITAL SOCIETY, JOHN DOE and JANE DOE DEFENDANTS - AND - DOCKET: 93-4204 BETWEEN: DENISE SHIELDS PLAINTIFF AND: DR. HERBERT N. FITTERMAN and ST. PAUL'S HOSPITAL DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE E.R.A. EDWARDS Counsel for the Plaintiff: In Person Counsel for the Defendants: Abigail C.F. Turner Shortt and Fitterman Counsel for the Defendants: Catherine L. Woods Greater Victoria Hospital Society and St. Paul's Hospital Place and Date of Hearing: Victoria, B.C. February 11, 1999 [1] These actions, which have been ordered tried together in June 1999, allege medical malpractice. Action No. 93-4204 was commenced 9 months outside the two year limitation period. [2] Two left eye operations were performed on the plaintiff in 1991 to reduce internal pressure in the eye which all the medical evidence indicates would have inexorably resulted in blindness if unrelieved. The plaintiff lost the sight in her left eye after the second operation. The eye is now disfigured. [3] Two successive counsel engaged by the plaintiff have withdrawn from the record. Two others she contacted have declined to act. She now acts on her own behalf. [4] The trial was set for February 9, 1998, but adjourned at the plaintiff's request in December of 1997. [5] All defendants now apply under Rule 18A for summary dismissal of the actions. [6] The plaintiff advised the court she is again seeking to instruct counsel. She acknowledged that without the assistance of counsel she is unable to obtain expert evidence to support her claim. [7] According to the plaintiff, her former counsel did nothing to obtain expert evidence, despite the fact she says she has seen numerous doctors at great expense since she lost the sight in her left eye. [8] She has been aware of these applications and the necessity to obtain expert medical evidence to support her allegations of negligence since early November, 1998, when she was so advised by defendants' counsel after she filed a Notice of Intention to Act in Person. The plaintiff has filed no expert evidence to support her allegations of negligence against any of the defendants. [9] The plaintiff has filed an affidavit, prepared with the assistance of a friend, which includes argument as well as assertions of fact, including hearsay attributed to named and unnamed doctors and references to Canadian Research Council and Glaucoma Research Foundation publications. [10] The plaintiff asserts in her affidavit that she was not adequately advised or was misadvised by the defendant doctors as to the surgical procedures performed and their attendant risks and was treated with inappropriate eyedrops. [11] With respect to the second surgery, the plaintiff alleges that it was done while she had a respiratory infection. The plaintiff asserts in her affidavit that the defendant Shortt told her that a cough prompted post-operative hemorrhaging in the eye. This hemorrhaging caused the retina to detach with ensuing irreparable blindness. [12] The defendant hospitals did not employ the defendant doctors, so there is no basis on which they might be vicariously liable. [13] The allegations against St. Paul's Hospital are that it was negligent in providing unapproved laser equipment and in permitting Dr. Fitterman to use it when he was unqualified to do so. These allegations are supported by no evidence and refuted by the uncontradicted affidavit of Dr. Duncan Anderson. [14] The allegations against the Victoria Hospital Society are that it was negligent in failing to provide adequate pre- and post-operative care and medication and failing to warn Dr. Shortt the plaintiff was exhibiting cold symptoms prior to surgery. [15] The affidavit of RN Lynn Kidd, who reviewed the hospital file, states that records show the plaintiff's family physician reported the plaintiff recently recovered from lower respiratory tract infection, had no upper or lower respiratory infections and was suitably healthy for surgery. Records also show a nurse Nelson assessed the plaintiff the day before the surgery and found no symptoms of concern with respect to the plaintiff's cardio or respiratory systems. [16] There is no evidence of any cold symptoms, nor any record of the plaintiff coughing. The only link between a possible cough and the hemorrhaging in the eye was the statement attributed to Dr. Shortt by the plaintiff. [17] According to the expert report of Dr. Parsons, a cough or vomiting could cause the hemorrhaging, but it could also occur spontaneously after the surgery performed by Dr. Shortt. [18] Ms. Kidd's affidavit indicates hospital records noted the plaintiff was allergic to all eyedrops and ointments except Betagan, and that the plaintiff declined to take drops prescribed by Dr. Shortt, as well as other post-operative treatment he prescribed. [19] In a commentary entitled "History of the Case" attached to her affidavit, the plaintiff asserts she was given steroid eyedrops, ten minutes before the hemorrhaging began. She claims on the strength of a booklet form the Glaucoma Research Foundation (not in evidence) steroid drops should never be given to glaucoma sufferers. There is no evidence apart from her assertion that she was given such drops or that they might have precipitated the hemorrhaging. [20] There is no evidence before the court on which the allegations against the hospitals could possibly be proved on a balance of probabilities. [21] Dr. Anderson's evidence of standard procedures with respect to the laser equipment as used at St. Paul's Hospital and Dr. Fitterman's qualifications to use it would have to be refuted for the plaintiff to succeed against that hospital. I can imagine no source of evidence available to the plaintiff to refute that evidence or to prove the allegations against St. Paul's Hospital. [22] Similarly, the pre- and post-surgical records of the Victoria Hospital Society constitute the only accurate record of what was done by that hospital regarding the second surgery. Those records were in the hands of the plaintiff's former lawyers for years. No hospital officials were examined for discovery. Again, I can imagine no independent source of evidence available to the plaintiff which would cast doubt on the accuracy of those records, nor construct a scenario from them which would prove on a balance of probabilities the hospital care was negligent or resulted in the consequences which befell the plaintiff. [23] The onus is on the plaintiff, on a Rule 18A summary judgment application as it is at a full trial, to provide evidence to support the allegations of negligence made in the pleadings. In virtually all cases of alleged medical malpractice, expert evidence will be required to meet that onus. [See: ter Neuzen v. Korn (1995), 11 B.C.L.R. (3d) 201 (S.C.C.)]. The plaintiff has failed to meet that onus here. [24] This case bears a remarkable similarity to Crnkovic v. Stockdill (January 9, 1998, No. S026054, New Westminster Registry) in which Cohen J. dismissed a malpractice action against doctors and a hospital brought by an unrepresented plaintiff. The plaintiff there as here failed to provide expert evidence to support the claims of negligence. [25] The plaintiff says she needs a lawyer to get expert evidence. That presumes expert evidence could be obtained to support her claims of negligence. [26] Special care must be taken to ensure that unrepresented litigants are not disadvantaged. Defendants must be fairly treated as well. Neither side should incur unnecessary expense or exposure to legal costs by having a case go to trial which has no prospect of success. [27] I have considered and rejected the possibility of adjourning these applications to permit the plaintiff to instruct counsel again so as to obtain assistance in obtaining expert evidence. I have rejected it because I have concluded on the submissions and material before the court that expert evidence supporting the plaintiff's allegations is, in light of the passage of time, the failure of past counsel to secure it, the nature of the plaintiff's allegations and the evidence refuting the allegations of negligence against the defendants, almost certainly unobtainable. [28] The claims against the hospitals are secondary. The plaintiff's primary claim is against the doctors. It is in essence that she was not properly informed as to the nature of the two surgical procedures or the risks associated with them. The plaintiff maintained in her oral submission to the court she had been subjected to "experimental" surgery, that the possible negative consequences were never explained to her and that she would never have consented had she been properly informed of the risks. [29] The plaintiff claimed she signed a blank consent for the second surgery because she had left her glasses at home and could not read it. She claimed she would not have consented to the procedure carried out. A signed completed consent form from the hospital records indicates the procedure as "para plana vitrectomy left eye trabeculectomy left eye", which is what Dr. Shortt performed. [30] The plaintiff's assertion leaves unanswered obvious questions. If she could not read the form, how can she say it was in blank? If she could see it was blank, why did she sign it? In effect, she is claiming the form is a forgery. [31] The plaintiff made a similar claim with respect to a letter dated April 2, 1991, from Dr. Shortt to Dr. Fitterman which is in the hospital records, stamped as received April 4, 1991, about three weeks before the second surgery. [32] In the letter Dr. Shortt states: Ms. Shields left eye is in trouble! I believe the only option left to try and control the intraocular pressure is to do a combined procedure including a pars plana vitrectomy to remove as much of the formed vitreous as possible followed by a trabeculectomy. By removing the vitreous it should reduce somewhat the chance of the trabeculectomy canal being plugged with formed vitreous. Ms. Shields is aware of the urgent need for glaucoma surgery and also understands the inherent risks involved in any surgical procedure to her eye because of her high degree of myopia. The risks have been outlined to her and include retinal detachment, infection, hemorrhage and the remote but real chance of a total irreversible vision loss. Faced with the possibility of slowly progressive loss of vision Ms. Shields has elected to proceed with pars plana vitrectomy/trabeculectomy - left eye, has requested general anaesthesia.... [33] The plaintiff denied the content of the letter, in particular that the nature of the procedures and risks involved had ever been explained to her by Dr. Shortt. She offered no explanation other than that Dr. Shortt was "mistaken" about what he told her or failed to tell her. [34] In an affidavit Dr. Shortt deposed that on or about April 2, 1991, he told the plaintiff the things mentioned in the letter of that date and that thereafter she consented to the surgery mentioned in the letter. [35] In light of all this evidence, I find the plaintiff gave informed consent to the second surgery. [36] With respect to the first surgery, the plaintiff states in her affidavit that the defendant Fitterman told her she should not have a further "trabeculoplasty" but advised her to have a "trabeculostomy", which she states is an "unknown surgery procedure". Dr. Fitterman states in his affidavit he uses the two terms interchangeably for the same procedure. [37] Dr. Parsons, who reviewed Dr. Fitterman's records, indicates Dr. Fitterman recommended a trabeculoplasty and carried it out "in a standard manner and well documented". [38] A consent form signed by the plaintiff does not indicate what procedure the plaintiff consented to, but includes the following "... I acknowledge ... I have been advised by the attending physician(s) of the nature of the treatments and procedures to be carried out ...". A hospital discharge form dated the same day bearing Dr. Fitterman's initials describes the operation as "laser trabeculostomy". [39] An expert report from Dr. Finlay indicates Dr. Fitterman performed a trabeculostomy. In his report he uses the terms trabeculoplasty and trabeculostomy interchangeably. [40] In his letter to Dr. Fitterman of April 2, 1991, Dr. Shortt refers to the procedure as a "laser goniplasty". In his affidavit Dr. Shortt deposes that the plaintiff told him she had undergone a "trabeculostomy" which he adds is "commonly referred to as a trabeculoplasty". [41] I am satisfied the two terms may be used interchangeably to describe the same procedure. In any event, the issue is not what terminology was used in seeking the plaintiff's consent, but whether the procedure was explained to her. [42] Dr. Fitterman deposed that his standard procedure was to advise patients undergoing a trabeculostomy the nature of the procedure, that it was not always successful and that there were no inherent risks, but if successful the effect would last only one or two years. He deposed further that while he could not specifically recall going through his standard practice with the plaintiff he had no reason to believe he did not. [43] The plaintiff had undergone a trabeculoplasty before. Dr. Fitterman deposed that as a result he understood she was familiar with the procedure. [44] According to the medical evidence, the only "risk" associated with this procedure, which is done by laser without anesthetic, is that the desired result will not be obtained. Neither aggravation of the problem sought to be rectified nor collateral complications are risk considerations. [45] The medical evidence also establishes that without the trabeculostomy, increasing pressure in the eye would have caused blindness. When that surgery failed to relieve the pressure, which began to increase, the same was true if the trabeculectomy and vitrectomy were not tried. In light of that evidence, it is not surprising that Dr. Fitterman deposed that all patients to whom he recommended trabeculostomy consented and that Dr. Shortt deposed that all patients to whom he recommended trabeculectomy and vitrectomy have undergone the surgery. [46] With respect to all three procedures, Dr. Finlay states: "Knowing the outcome of non intervention, patients always accept the risks of failure as being acceptable." [47] Dr. Parsons opined that the only therapies available in light of the plaintiff's rising intraocular pressure were "laser trabeculoplasty ... and/or trabeculectomy". He further opined "the patient had no choice ... but to consider having a trabeculectomy". [48] In Diack v. Bardsley (1983), 46 B.C.L.R. 240 (B.C.C.A.) the court found that a plaintiff alleging he was not warned of the risk of surgery bore the onus of proving he would not have been injured if he had received a proper warning, because he would not have consented. It is not enough to discharge that onus for the plaintiff to merely state after the fact that she would not have consented. The test is an objective one. Would a reasonable person in the plaintiff's position have consented to these operations after a proper warning of the risks? [49] I find the plaintiff understood blindness in her left eye would inevitably ensue if the two operations were not tried. [50] The only possible consequence of the second surgery which was not discussed with her was the disfigurement to her eye which followed the operation. I say "possible consequence" because there is no evidence establishing that the disfigurement is a consequence of the subsequent hemorrhaging. [51] Assuming, without deciding, that the disfigurement was a risk associated with the second surgery, the question is, would a reasonable person have accepted that risk in order to possibly avoid or postpone otherwise inevitable blindness. I conclude a reasonable person would favour possible maintenance of her sight over possible compromise of her appearance and accept the risk. [52] Insofar as the actions against the doctors are based on lack of informed consent, I have concluded they must inevitably fail. Insofar as they are based on negligent treatment by the doctors there is simply no evidence to support allegations of negligence. The expert reports of Drs. Finlay and Parsons refute the allegations of negligence. [53] While I am sympathetic to the plight of the plaintiff who suffered a tragic loss of sight and disfigurement. I must decide if there is any prospect she could succeed in proving her claims of negligence against the defendants if these cases proceed to trial. There is sufficient evidence before the court to allow me to conclude that she has no prospect of success. The actions are dismissed against all defendants. "E.R.A. Edwards, J." THE HONOURABLE MR. JUSTICE E.R.A. EDWARDS