Tamimi v. Toronto Hospital (Western Division)

Tamimi v. Toronto Hospital (Western Division) Collection Decisions of the Court of Appeal Date 1999-07-13 Docket numbers C31153 Judges Osborne, Coulter Arthur Anthony; Catzman, Marvin Adrian; Charron, Louise Vivianne Subject Civil Decision Content DATE: 19990713 DOCKET: C31153 COURT OF APPEAL FOR ONTARIO RE: FAISAL TAMIMI (Appellant) v. THE TORONTO HOSPITAL (WESTERN DIVISION), DR. FREDERICK GENTILI (Respondents) BEFORE: OSBORNE A.C.J.O., CATZMAN and CHARRON JJ.A. COUNSEL: Joyce Chan for the appellant Frank J. McLaughlin and Peter Neumann for the respondent, Gentili HEARD: June 29, 1999 On appeal from the order of Mr. Justice Rivard dated November 20,1998. ENDORSEMENT [1] The respondent operated on the appellant in May 1993 to resolve the appellant’s problem of excessive sweating. The procedure is referred to in the material as a “sympathectomy.” The surgery resolved the appellant’s sweating disorder, however, following the surgery the appellant developed and complained of pain and discomfort that was physiologically not connected with the surgery. It is not suggested that from the appellant’s perspective that the pain is anything other than real. There is no issue raised with respect to the respondent’s performance of the surgery itself. [2] The appellant does, however, submit that the respondent was negligent in that he failed to give the appellant sufficient pre- operative advice about the risks and benefits of the surgery. The appellant submits that in light of his pre-existing psychological problems, the respondent should have consulted the appellant’s psychiatrist and, with the benefit of that consultation, given the appellant some pre-operative advice that he did not receive in the circumstances. There is no evidence that discloses directly, or by implication, what the consultation that the appellant says should have taken place would have revealed. Thus, there is no evidence on the issue of what additional advice about the risks of this surgery should have been given by the respondent to the appellant before the surgery was undertaken. The respondent filed two expert reports in which the two experts expressed the opinion the respondent did not fall below the appropriate standard of care in the manner in which he dealt with the appellant before the surgery. The appellant filed no expert reports on that or any other relevant issue. The motions judge, Rivard J., found that on the material before him on the respondent’s summary judgment motion there was no evidence of negligence which could support a finding of liability against the respondent. We see no error in that conclusion. Thus, the appeal is dismissed with costs if requested.