IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  This claim is brought by Ms. Kumar against Dr. Martin Braverman and his professional corporation, Dr. Martin P. Braverman Inc.  The claim arises as a result of dental surgery performed by Dr. Braverman upon Ms. Kumar on the 21st of June, 2011.

[2]           In the spring of 2011, Ms. Kumar was experiencing some pain in her mouth.  Her wisdom teeth on both her left and right side were coming into contact with the inside of her mouth causing pain.  Ms. Kumar met with her family dentist who recommended that the four wisdom teeth should be removed.  Ms. Kumar's family dentist referred her to Dr. Braverman.

[3]           On the 24th of May, Ms. Kumar met with Dr. Braverman.  Dr. Braverman obtained copies of the X-rays taken by Ms. Kumar's family dentist.  In addition, he had a second set of X-rays taken in order to assist him in advising Ms. Kumar.  Dr. Braverman and Ms. Kumar discussed in Dr. Braverman's office what was to be done.  Ms. Kumar decided to have only two wisdom teeth removed rather than four.  She decided to have the two wisdom teeth on the right side of her face removed.

[4]           A dispute between Ms. Kumar and Dr. Braverman arises with respect to the question of informed consent.  Ms. Kumar says that she was not properly informed of the risks involved in the surgery which was being planned.  Dr. Braverman says that he did advise Ms. Kumar of the risks which were involved.  I will review that issue further, but first, it is necessary to comment on the results of the surgery.

[5]           On June 21st, 2011, Ms. Kumar came to Dr. Braverman's office to have the two wisdom teeth on the right side of her face removed.  In order to prepare her for the surgery, Dr. Braverman injected a local anaesthetic with an intravenous sedation.  He did this by using a needle and syringe.  This was injected into the jaw of Ms. Kumar.  After the surgery, Ms. Kumar experienced bleeding in her jaw area.  She returned to the surgical area and Dr. Braverman packed the area where the bleeding was occurring and then stitched the jaw area.

[6]           Ms. Kumar experienced significant pain and numbness following the surgery.  The pain and numbness subsided somewhat.  In addition, she had a tingling sensation on her tongue.  The numbness and pain did not completely resolve itself.  Following the surgery, she met with Dr. Braverman and complained of the pain and numbness.  In addition, Ms. Kumar was experiencing sensitivity to hot and cold food.

[7]           Dr. Braverman saw Ms. Kumar on five different occasions following the surgery.  He prescribed certain medications for her.  Those medications were unsuccessful in resolving the problems Ms. Kumar was experiencing.  Dr. Braverman referred Ms. Kumar to a pain specialist named Dr. Whitney.  He wrote a comprehensive reporting letter which he sent to Dr. Whitney.  Ms. Kumar attempted to make an appointment with Dr. Whitney.  She says that there was a delay of over a year before she could get an appointment.  By this time, she had lost confidence in Dr. Braverman.  She had no further contact with him.

[8]           Today, some three-and-a-half years after the surgery, Ms. Kumar continues to experience numbness on the lower right side of her jaw.  She continues to suffer pain.  She has a sensitivity to hot and cold food.  It appears that this condition will be permanent.

[9]           I return to the question of whether or not Dr. Braverman informed Ms. Kumar of the risks involved in the surgery.  Counsel for Dr. Braverman says, firstly, that Ms. Kumar was informed of the risks involved in the planned surgery.  Alternatively, counsel for Dr. Braverman says that, in the circumstances, it was not required that Dr. Braverman advise Ms. Kumar that there was a risk of numbness, pain, and sensitivity to hot and cold food if she proceeded with the extraction with the assistance of a local anaesthetic and intravenous sedation.

[10]        Following her meeting with Dr. Braverman on the 24th of May, Ms. Kumar received a document entitled, "Consent for Oral Surgery and Anaesthesia."  Ms. Kumar says that this document was given to her by the staff employed by Dr. Braverman.  She says it was not given to her by Dr. Braverman.  She says it was completed by the front-desk staff.  Ms. Kumar says that she read the consent document and that she signed it.  She said that she did not understand some of the terms set out in the consent document.

[11]        The document is entitled, "Consent for Oral Surgery and Anaesthesia."  I will read the relevant portions of the document.  It says:

[12]        Below the portions of the consent form that I have read is the signature of Ms. Kumar and the date, "May 24th, 2011."  Ms. Kumar points out that she did not initial next to the six paragraphs set out in the consent form.  In particular, she did not place her initials next to paragraph 3 which speaks of the risks concerning surgery to the lower part of her jaw.

[13]        Dr. Braverman says that, in fact, he completed the portion of the consent form where Ms. Kumar's name is written and where the planned surgery is described as "extraction of number 18 and 48."  Dr. Braverman further says that he reviewed with Ms. Kumar each of the paragraphs set out in the consent form including paragraph 3 dealing with surgery to the lower part of her jaw.  Dr. Braverman says that after reviewing this document, he gave it to Ms. Kumar and instructed her to go to the front counter, read it carefully, and if she wished, sign it.

[14]        Ms. Kumar testified that she did not understand portions of the consent form.  In particular, she said that she read the consent form, but she did not understand the medical terminology.  She repeated this during her cross-examination.  Counsel for Dr. Braverman directed her to each of the words set out in paragraph 3 and asked which word or words were not understood by Ms. Kumar.  Ms. Kumar could not answer satisfactorily.

[15]        As I have reviewed paragraph 3, it is noted that there is no medical terminology that would not be understood by someone having competency in the English language and a reasonable level of education.  I pause to note that Ms. Kumar is 54 years of age, is employed by Service Canada.  She obtained her Grade 12 education and then completed two years of college dealing with computers.  Her duties at Service Canada are clerical and, in particular, deal with document preparation.  I find that Ms. Kumar has adequate English skills and education such that she would have no difficulty in understanding the provisions of paragraph 3 of the consent.

[16]        The burden of proof is upon Ms. Kumar to show on a balance of probabilities each and every element of her claim.  The burden of proof is upon her to show that Dr. Braverman failed to adequately advise her of the risks involved in the surgery and, in particular, the risk of the numbness, pain, and sensitivity to hot and cold food which Ms. Kumar is presently experiencing.  I find that Ms. Kumar has failed to show on a balance of probabilities that Dr. Braverman fell below the standard of care required for informed patient consent and, in particular, informed patient consent for the risk pertaining to the injury suffered by Ms. Kumar.

[17]        Counsel for Dr. Braverman made an alternate submission concerning the issue of informed consent.  Counsel submitted that it was not necessary for Dr. Braverman to advise Ms. Kumar of the risk of numbness, pain, and sensitivity to hot and cold food as result of the local anaesthetic and intravenous sedation used during the surgery.  In support of that submission, counsel for Dr. Braverman referred to the evidence of Dr. Larry Goldstein.

[18]        Dr. Goldstein was called as an expert witness by Dr. Braverman.  I accepted Dr. Goldstein's professional qualifications to provide expert opinion evidence with respect to oral and maxillofacial surgery.  I will not review extensively the professional qualifications of Dr. Goldstein.  They are set out in his report of November 4th, 2013, which was filed as an exhibit in these proceedings.

[19]        He is a certified specialist in oral and maxillofacial surgery.  He is an assistant clinical professor at the University of British Columbia and at Vancouver General Hospital.  I had no hesitation in accepting the qualifications of Dr. Goldstein to provide opinion evidence with respect to the issues before the court.

[20]        With respect to the issue of informed consent, Dr. Goldstein testified that it was not necessary for Dr. Braverman to inform Ms. Kumar of the risk of injury with respect to the surgery and the local anaesthetic and intravenous sedation which was planned.  Dr. Goldstein reviewed the frequency of injuries such as the injuries suffered by Ms. Kumar.  He said that such injuries occurred approximately once in every 600,000 applications of local anaesthetic with intravenous sedation.  He said that in order to meet the standard of care expected of oral surgeons, it was not necessary for Dr. Braverman to advise Ms. Kumar of the risk that she might suffer the injury which she indeed suffered.

[21]        Counsel for Dr. Braverman referred to the court the case Schinz v. Dickinson found at tab 1 of the defendants' book of documents.  It is a decision of the British Columbia Court of Appeal delivered December 19th, 1984, and found at 1984 CanLII 400 (BC CA), [1984] B.C.J. No. 2748.  At paragraph 18 of that decision, the court reviewed the circumstances in which it was not necessary for a patient to be informed of remote risks associated with the planned surgical procedure.

[22]        I, therefore, find that even if Dr. Braverman failed to obtain the informed consent of Ms. Kumar, which I do not find as a fact, then Dr. Braverman met the standard of care expected of a qualified oral surgeon as the remoteness of the risk did not require him to discuss that with Ms. Kumar.  For all of those reasons, I find that Ms. Kumar's submission that Dr. Braverman failed to meet the standard of care expected of an oral surgeon by failing to obtain her informed consent must be dismissed. 

[23]        I turn now to the question of liability.  Ms. Kumar submits that Dr. Braverman was negligent in performing the oral surgery.  There are three aspects of the surgery to be considered.  Firstly, there is the use of the local anaesthetic and intravenous sedation.  Secondly, there is the manner of the extraction.  Thirdly, there is the issue of the post-surgical care.

[24]        Dr. Goldstein, in his report, examined each of those three aspects of the surgery.  Dr. Goldstein was present during the testimony of Ms. Kumar.  Ms. Kumar testified that for a year and a half following the surgery, she had a tingling sensation in her tongue.  This sensation caused her to mispronounce or slur words from time to time.  She testified that this has largely resolved itself.

[25]        Dr. Goldstein said that after hearing the evidence of Ms. Kumar, he could modify his professional opinion concerning the cause of the disability suffered by Ms. Kumar.  Dr. Goldstein testified that it was his professional opinion that the injury suffered by Ms. Kumar was caused by the injection of the intravenous sedation into the jaw of Ms. Kumar prior to and during the surgery.  Ms. Kumar submits that Dr. Braverman was negligent in the manner in which he performed this portion of the surgery.  She submits that he knew or ought to have known of the risk of injury and that he should have taken extra care during the process.

[26]        Dr. Goldstein reviewed in great detail the risks associated with the use of injected anesthetic.  He outlined the risk of damage to the nerve associated with this sort of surgical procedure.  It was the conclusion of Dr. Goldstein, and I quote from his report that:

[27]        Ms. Kumar relied on the report of Dr. Sujay Mehta to support her allegation that there was negligence on the part of Dr. Braverman.  There are two opinion letters from Dr. Mehta.  One is dated the 26th of September, 2013, and the other is dated the 31st of August, 2013.  Dr. Mehta does not assert that Dr. Braverman was negligent in the manner in which he injected the intravenous sedation into the jaw of Ms. Kumar.  His allegations of negligence deal primarily with the post-surgical treatment provided by Dr. Braverman to Ms. Kumar.

[28]        I find that Ms. Kumar has failed to prove that Dr. Braverman did not meet the standard of care with respect to the manner of the injection of the intravenous sedation.  There is simply no evidence to support the allegation of negligence in that particular particularity against Dr. Braverman.

[29]        The focus of Dr. Mehta's report is on the post-surgical care provided by Dr. Braverman.  Dr. Braverman's response can be succinctly stated.  Dr. Braverman says that Dr. Mehta would be correct if he, that is, Dr. Braverman, had failed to take the steps recommended by Dr. Mehta.

[30]        Dr. Braverman says he, in fact, did everything that Dr. Mehta suggested.  The opinion of Dr. Goldstein was the same.  He said that Dr. Mehta's recommendations concerning what should be done following surgery were correct.  Dr. Goldstein also said that, reviewing the notes of Dr. Braverman and hearing his testimony, there is no doubt that Dr. Braverman met the standard of care expected when dealing with the post-surgical issues faced by Ms. Kumar.

[31]        I find that Dr. Braverman was attentive to the needs of Ms. Kumar.  I find that he recognized she was suffering from a post-surgical issue which required treatment.  I find that he prescribed the appropriate medications at the appropriate time in order to deal with these issues.  I find that he recognized the need to refer Ms. Kumar to a specialist.  I find that Dr. Braverman referred Ms. Kumar to an appropriate specialist, that being, Dr. Whitney.  I find that Dr. Braverman followed up this referral with a thorough letter to Dr. Whitney.  There could be no doubt that Dr. Braverman met the standard of care with respect to the post-surgical issues.

[32]        To sum up, there was no negligence on the part of Dr. Braverman in any aspect of the claim presented by Ms. Kumar.  Her claim against Dr. Braverman and his personal company is dismissed.

[33]        Costs are awarded to the defendants against Ms. Kumar, and I will leave it for counsel to advise Ms. Kumar of the costs which are being sought.  In the event that an agreement cannot be reached, counsel for Dr. Braverman can bring the matter back to me.  For some clarity, I agree that the costs of Dr. Goldstein should be included provided such are reasonable.  As I have also advised the parties, I will be absent for personal medical issues until the 1st of March.  In the event of a dispute which requires a further adjudication, the matter will have to wait until then.