Most medical procedures involve some level of risk.  Because of this, doctors have an obligation to fully inform their patients about the procedure and the associated potential side-effects and complications so that they can make an informed decision about whether or not to proceed.  This is known as informed consent.

A doctor’s obligation to obtain informed consent from his/her patient includes the following:

  • The doctor must disclose the nature of the treatment, its gravity, and any associated risks that would want to be known by a reasonable patient
  • The doctor must inform the patient about the frequency or statistical chance of a material or special risk arising
  • The doctor must explain the nature and severity of the injury that could ensue

The extent or scope of the standard by which a doctor is required to property inform a patient is set out by the Supreme Court of Canada in Hopp v. Lepp [1980] 2 SCR 192 (SCC):

“In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.”

This was further clarified in another Supreme Court of Canada case (Reibl v. Hughes [1980] 2 SCR 880 (SCC)).  In this case, the patient suffered a stroke which caused paralysis following an operation where this was a known possible risk.  The failed to inform him of the risk of stroke from the surgery despite being the patient asking about it.  Instead, the doctor informed the patient that he was more likely suffer a stroke without the surgery.  The Supreme Court of Canada concluded that this was a breach of the duty stating:

“…even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet where its occurrence carries serious consequences, as for example paralysis or even death, it should be regarded as a material risk requiring disclosure.”

The current state of the law does not require a physician to advise patients of every possible risk, only those that are material. The question then is – what is a material risk?  Does a doctor have to inform patients of every risk possible or not?

In Reibl v. Hughes, the Supreme Court of Canada stated that an objective standard is to be used when determining what constitutes a material risk for informed consent.  An objective standard focuses on what a reasonable patient would want to know before consenting to the proposed procedure.   This was explained as follows by the trial judge in Brito v. Wooley 2001 BCSC 1178:

“What constitutes a special, material or unusual risk will depend on the particular facts of the case. A mere possibility will be included as a material risk if the occurrence of that mere possibility is serious, for example, if it can result in paralysis or death; and, Material risks include those risks which the doctor knows, or ought to know, that a reasonable person in the patient’s position would consider in deciding whether to undergo a procedure or treatment.”

Once a breach of the duty to disclose has been established in that informed consent is found to not have been obtained, the next issue is causation.  This involves consideration of the patient’s particular circumstances along with applying an objective test.  The objective test involves determining whether the patient would have undergone the procedure had he/she known of the material risks by considering what a reasonable patient in the same situation would have done.

Informed consent in medical malpractice claims are highly complex and technical.  At Holness and Small Law Group, our Vancouver medical malpractice lawyers have the experience and skill to help you navigate your medical malpractice claim.  Contact us to learn more about your legal rights relating to your medial malpractice claim.

To read more about informed consent in medical malpractice, see other blog articles on the same topic.