Thomson Rogers Secures Important Victory in Denman v. Radovanovic Appeal: Court of Appeal Upholds $8.5 Million Informed Consent Verdict and $3 Million Cost Award

In a significant victory for patient autonomy and a physician’s duty of disclosure, the Ontario Court of Appeal has unanimously affirmed the trial judge’s decision in the case of Denman v. Radovanovic et al. an informed consent case.  The Appellate Court upheld the trial judge’s finding that the three defendant physicians, Dr. Karel ter Brugge, Dr. Ivan Radovanovic and Dr. Vitor Mendes Pereira, failed to obtain Mr. Denman’s informed consent to a series of complex neuro-endovascular and neurosurgical procedures, ultimately resulting in severe brain injury and disability for Mr. Denman.

Justice Rouleau, writing for the unanimous three-judge panel, addressed the liability of each defendant, emphasizing the duty of physicians to provide patients with adequate disclosure of risk.  In so doing, the Appellate Court upheld the finding of liability against Dr. ter Brugge, a senior interventional radiologist at the Toronto Western Hospital, even though Dr. ter Brugge did not participate in any of the three procedures at issue.  Dr. ter Brugge’s liability rested on the fact that he was charged with obtaining Mr. Denman’s informed consent at the outset of the treatment plan which would likely consist of a series of embolizations followed by a surgical resection.  Dr. ter Brugge failed to adequately disclose to Mr. Denman the risks of each procedure or even that a series of procedures would likely be required, instead advising him that a single embolization would likely be sufficient.  Predictably, it was not.  Justice Rouleau noted, “had Mr. Denman being given adequate disclosure by Dr. ter Brugge, neither he nor a reasonable person in his situation would have embarked upon the course of treatment.”  Justice Rouleau also referenced the fact that Dr. ter Brugge had directed Mr. Denman to a “misleading” Toronto Western Hospital website that understated the risks of the procedures being recommended to Mr. Denman and other patients with his condition. 

Justice Rouleau found that the chain of causation between Dr. ter Brugge’s inadequate disclosure and Mr. Denman’s ultimate injury was not broken by subsequent discussions Mr. Denman had with Drs. Pereira and Radovanovic because,  “unfortunately, Mr. Denman did not receive adequate disclosure along the way, including before the combined procedure.”  The Court found both Drs. Radovanovic and Pereira liable for inadequate disclosure, emphasizing the misleading and inaccurate information provided to Mr. Denman regarding the combined embolization and surgical resection they proposed to him in the aftermath of two unsuccessful embolization procedures.  Mr. Denman sustained his brain injury during the ensuing embolization portion of the combined procedure at the hands of Dr. Pereira. 

Additionally, the Court upheld the trial judge’s decision to exclude a defence expert witness, Dr. Gary Redekop, on the grounds that he was biased in favour of the defendant doctors.

In refusing to grant leave to appeal the $3 million costs award, Justice Rouleau emphasized the appropriateness of the award considering the complexity of the case, the damages awarded, and the legal work required to achieve the result.

Thomson Rogers lawyers, Sloan Mandel, Aleks Mladenovic and Deanna Gilbert, as well as the entire team of Thomson Rogers law clerks and legal assistants are deeply gratified with this result and its significance to Andrea and Michael Denman.  This is yet another vindication for the Denman family, who have struggled long and hard to secure justice and life-changing compensation in the aftermath of these tragic and disturbing events.  Thomson Rogers congratulates and commends the Denmans for their undying patience, grace, and dignity throughout this lengthy and challenging litigation.

For further details, the Court of Appeal’s Decision can be accessed here.