Dental “Failure to Warn” Case Dismissed Where Court Finds Reasonable Person Would Have Consented To Risks

Reasons for judgement were published this week by the BC Court of Appeal finding that no error was made by a trial judge who dismissed a dental surgery negligence claim where risks of the procedure were not adequately canvassed with a patient.

In this week’s case (Warlow v. Sadeghi) the Plaintiff was a patient who underwent dental surgery by the Defendant.  The procedure resulted in an “injured a nerve in Ms. Warlow’s lower right jaw, resulting in permanent and debilitating nerve pain that has altered virtually every aspect of her life.“.  Prior to surgery the Defendant did not adequately inform the plaintiff of this potential risk.  Despite this the trial judge dismissed the claim finding a reasonable patient would have consented had the risk been canvassed.  In dississing the plaintiff’s appeal the BC Court of Appeal provided the following reasons:

[39]         Ms. Warlow had the burden to prove what she would have done if she had been properly warned. In this case, as set out in the above excerpt, Ms. Warlow was not asked what she would have done if properly warned. She did not provide the testimony necessary to meet her burden on the subjective aspect of the modified objective test. Faced with this dearth of evidence, the trial judge could not infer what Ms. Warlow would have done. The insufficiency of the evidence means the plaintiff failed to meet her burden, and the trial judge did not err in dismissing her action.

[40]         Even if it could be said that the trial judge erred in her handling of the subjective aspect of the modified objective test, Ms. Warlow still faces an insurmountable hurdle. The trial judge found an adequately informed reasonable person in Ms. Warlow’s shoes would have proceeded with the surgery. Ms. Warlow contends the trial judge failed to consider the two alternatives to treatment when determining what a reasonable person in the appellant’s position would have done. It is clear, however, from the trial judge’s reasons that she was alive to the two alternatives. In that regard, she outlined the evidence concerning the two alternatives and their consequences:

[51]      Dr. Sadeghi said that he told Ms. Warlow that extracting tooth 47 would mean removing a functional molar, leaving the corresponding molar in her upper jaw without a complement and rendering it dysfunctional. Alternatively, leaving things as they were created the risk that acute infection, like the one that had originally sent Ms. Warlow to Dr. Gardner and Dr. Martin, could recur. Dr. Sadeghi said he told Ms. Warlow that if the infection recurred, it would necessitate further antibiotic use and a risk of antibiotics becoming ineffective. He said that a subsequent infection could also spread to the jaw and neck, and might lead to hospitalization and death.

[41]         The trial judge carefully reviewed the circumstances relevant to the reasonable person analysis:

[82]      In summary, the circumstances relevant to the reasonable person analysis are:

·        Ms. Warlow had recently experienced an acute gum infection and understandably would have been concerned to avoid a recurrence, especially because she was embarking on an exciting new career;

·        Both Dr. Martin and Dr. Sadeghi advised Ms. Warlow that extraction of her wisdom tooth was the best option for her and Ms. Warlow generally trusted and relied upon the advice of health professionals;

·        Wisdom tooth removal is a common procedure;

·        Ms. Warlow had had various kinds of dental work previously; and

·        Ms. Warlow consented to the surgery knowing that there was a 1.5–2% risk of temporary or permanent nerve injury that could result in altered sensation, numbness and/or pins and needles.

[42]         Ms. Warlow has not identified any palpable and overriding error in the trial judge’s findings relevant to the modified objective test. Instead, she simply says the findings should have led the judge to a different conclusion. It is not this Court’s role to reweigh the evidence; the trial judge’s findings are entitled to deference.

[43]         In the result, I would dismiss the appeal.