Bahram Soltani v. Lyne Desnoyers
(Quebec) (Civil) (By Leave)
Torts - Professional liability.
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Delictual liability – Professional liability – Duty to inform – Free and informed consent –Allophone patient agreeing to ear surgery considered necessary then subsequently becoming deaf – Whether courts below erred in concluding that physician had adequately informed patient of risks of surgery.
In 1991, after coming to Canada from Iran, the applicant Mr. Soltani consulted the respondent Ms. Desnoyers, an otorhinolaryngologist, about an infected ear. Mr. Soltani was allophone and, during his meetings with Ms. Desnoyers, was accompanied by friends who translated what was said. Following a second consultation, Ms. Desnoyers recommended that Mr. Soltani undergo a mastoid tympanoplasty based on the results of a hearing test and a radiologist’s report. Mr. Soltani agreed and the surgery was performed by Ms. Desnoyers. Subsequently, an inner ear infection led Ms. Desnoyers to recommend another surgery, but Mr. Soltani did not show up at the hospital on the scheduled date because of a misunderstanding. Mr. Soltani failed to show up on two more occasions and then refused to have surgery again. In the end, after becoming totally deaf in the ear and suffering from tinnitus and vertigo, Mr. Soltani was operated on again unsuccessfully by another physician.
Mr. Soltani then brought an action against Ms. Desnoyers, alleging that she had been at fault in not adequately informing him of the risks associated with the operation. He argued that he would not have agreed to the surgery if he had been informed of the risks. He also argued that Ms. Desnoyers had committed faults during the post operative follow up. He claimed $2,303,622.55 as compensation for the injury. The Superior Court dismissed the action, finding that Ms. Desnoyers was not at fault. The Court of Appeal dismissed the appeal.
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