Decision Not To Order CT is Not Unreasonable – No Negligence - Bollman v. Soenen 2017 ONCA 391

July 12, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Decision Not To Order CT is Not Unreasonable – No Negligence - Bollman v. Soenen 2017 ONCA 391

Date of Decision: May 17, 2017
Heard Before: Simmons, Pepall and Huscroft JJ.A.

In this case a surgeon operated on a patient and although the surgery appeared to go well initially, there was significant pain and other complications in the following days and weeks. A subsequent CT scan complications. A further surgery corrected the problems.

The patient sued the doctor based on negligence. She also alleged that the physician had failed to obtain informed consent from her for the surgery. She claimed the doctor was ill qualified to perform the surgery and did not meet the requisite standard of care required.

The trial judge rejected her claims that the doctor was not qualified to perform the surgery. The trial judge also rejected the claim the physician had failed to meet the standard of care. The judge did note that although he dismissed the consent claim, the physician did not fully inform her about risks of the surgery. The trial judge noted however, that a reasonable person with the same symptoms would have chosen to proceed with the surgery had full disclosure been made.

The trial judge found no negligence in the doctor’s post-operative care, however, noted that the doctor could have spared the patient pain and complications, and having to undergo a second surgery if he had ordered the CT scan sooner. The judge awarded the patient $35,000 in damages based on these conclusions.

The patient went on to appeal the dismissal of her claim of a lack of informed consent. The doctor then cross-appealed with respect to the findings on the timing of the CT scan. The Court of Appeal dismissed the claim on informed consent, but allowed the cross-appeal made by the doctor on the timing of the CT scan.

The Appeal court found that the trial judge’s decision on informed consent was correct. He applied the test for informed consent in medical negligence cases set out by the Supreme Court in Reibl v. Hughes, and then modified in Arndt v. Smith. The trial judge’s ruling showed clearly that he believed the patient’s assertion that she would have tried other management techniques for her medical problem if the doctor had fully disclosed potential outcomes, thereby allowing her to have full informed consent. The Judge noted that the patient’s evidence was given in hindsight though, and that on that basis it was not reliable.

The Judge concluded that the patient wanted relief and her issues resolved based on the evidence presented. The trial judge held that a reasonable person with the patient’s symptoms lasting over the same length of time, and who had followed the same courses of action/treatment would have chosen the same course of action notwithstanding the low risk of complication/injury in order to resolve the problem. 

The Court of Appeal rejected the patient’s submission that the trial judge ignored or failed to consider the evidence of her expert in reaching this conclusion. The Court of Appeal found that the trial judge considered all evidence, and applied the correct tests appropriately. The Court of Appeal upheld the trial judge’s conclusion on negligence.

The Court of Appeal then considered the cross appeal, and held that the trial judge did err. Based on the evidence presented the experts’ testimony was that declining to order a CT scan was at the reasonable decision, or at the very least not an unreasonable one. The doctor’s decision was therefore reasonable, and he met his obligation to the standard of care.

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