Warlow v. Sadeghi

Warlow v. Sadeghi

The trial judge correctly applied the modified objective test and made permissible factual findings — including that the risk of permanent severe neuropathic pain was too remote to require specific disclosure and that a reasonable person in the appellant's circumstances would have consented to extraction even if warned — and those findings, not shown to contain any palpable and overriding error, must be afforded deference; accordingly the appeal is dismissed.

Citation
2021 BCCA 46
Parties
Appellant / Plaintiff: Elaine Elizabeth Warlow; Respondent / Defendant: Dr. Ali Sadeghi and Dr. Ali Sadeghi Inc.
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
3 February 2021
Procedural Posture
Medical Negligence (informed Consent) / Appeal to Court of Appeal From Trial Judgment (supreme Court of British Columbia)
Outcome
Appeal dismissed; trial judgment affirmed.
Legal Topics
Modified Objective Test, Causation, Risk Disclosure, Burden of Proof, Standard of Review (palpable and Overriding Error)
Source Language
English
Medical Negligence Tort Law Informed Consent Appellate Review Modified Objective Test Causation Risk Disclosure Burden of Proof +1 more

Case Brief

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Parties

Elaine Elizabeth Warlow

Appellant / Plaintiff

Dr. Ali Sadeghi and Dr. Ali Sadeghi Inc.

Respondent / Defendant

Procedural Posture

Medical Negligence (informed Consent) / Appeal to Court of Appeal From Trial Judgment (supreme Court of British Columbia)

Legal Issues

  1. 1 Whether surgeon failed to disclose a material risk of permanent nerve pain arising from inferior alveolar nerve injury
  2. 2 Whether a reasonable person in the plaintiff's circumstances would have consented to the extraction if properly informed (modified objective test)
  3. 3 Whether the trial judge's findings attract deference on appeal (standard of review)

Ratio Decidendi

The trial judge correctly applied the modified objective test and made permissible factual findings — including that the risk of permanent severe neuropathic pain was too remote to require specific disclosure and that a reasonable person in the appellant's circumstances would have consented to extraction even if warned — and those findings, not shown to contain any palpable and overriding error, must be afforded deference; accordingly the appeal is dismissed.

Court Disposition

Appeal dismissed; trial judgment affirmed.

Orders

  • Appeal dismissed
  • Trial judgment dismissing action upheld