Patient would agree to procedure even if she knew risks, court says, applying modified objective test
The Court of Appeal for British Columbia has dismissed the appeal of a patient who experienced debilitating nerve pain following a wisdom tooth extraction because the patient would have consented to the surgery even if sufficiently apprised of the risk.
In Warlow v. Sadeghi, 2021 BCCA 46, the appellant suffered from a painful toothache and facial swelling in her lower right jaw. An emergency dentist recommended that the appellant undergo surgery to have her impacted lower right wisdom tooth extracted.
The appellant met with the respondent, an oral and maxillofacial surgeon, who advised her that the surgery could cause temporary or permanent nerve damage, which he described as altered sensation, pins and needles and numbness, and who discussed the appellant’s other options. The appellant chose to move forward with the surgery, for which she signed a generic consent form. During the procedure, the respondent injured the appellant’s inferior alveolar nerve, which is a known risk associated with the extraction of lower wisdom teeth.
The injury caused the appellant eight years of debilitating nerve pain that changed almost every aspect of her life, including the appellant’s earning ability, work schedule and ability to enjoy activities such as eating, exercising, dancing, and socializing. She moved to Victoria from Vancouver because of her financial issues following the incident. The appellant thus initiated a claim alleging that the respondent was negligent when he failed to adequately inform her of the risk of potentially permanent nerve pain.
The Supreme Court of British Columbia dismissed the claim, stating that while the respondent inadequately informed the appellant of the risk of having her wisdom tooth extracted, a reasonable person in the appellant’s position would have consented to the surgery even if the risk was properly disclosed. The trial judge found that because the risk of injuring the appellant’s inferior alveolar nerve was too remote at 1.5 to 2 per cent, the respondent did not need to expressly disclose the risk of permanent severe nerve pain.
The Court of Appeal for British Columbia dismissed the appeal, stating that the trial judge had correctly applied the modified objective test when she ruled that the appellant would have consented to the surgery even if sufficiently apprised of the risk and that, without a palpable and overriding error, the appellate court should give deference to the trial judge’s conclusions.
The appellate court found that the appellant had proven the first element of her cause of action under the modified objective test of causation established in Reibl v. Hughes, 1980 CanLII 23 (SCC),  2 SCR 880, because the respondent had failed to disclose the risk of permanent nerve pain before the surgery.
The second element, whereby the appellant should show that a reasonable person in her position would not have agreed to the surgery if she had been sufficiently advised of such risk, consists of objective and subjective parts. The objective part is based on what a reasonable person in the appellant’s position would have done, while the subjective part is based on what the appellant would have agreed to if she had known the risks.
To meet the subjective test, the appellant should have testified that, if the material risks or treatment alternatives had been properly disclosed, she would not have agreed to the procedure. The appellant failed to discharge this burden to prove what she would have done if she had been adequately warned, the appellate court said. Because the trial judge did not have enough evidence to infer what the appellant would have done, she correctly dismissed the appellant’s claim, the appellate court ruled.
The appellate court stressed that its role is not to reweigh the evidence. The appellate court should defer to the trial judge’s findings because the appellant did not identify any palpable and overriding error.