As discussed in other blog posts, a patient must be fully informed by his/her doctor of the following before undergoing a medical procedure:
- The nature of the treatment, its gravity, and any associated risks that would want to be known by a reasonable patient;
- The frequency or statistical chance of a material or special risk arising; and
- The nature and severity of the injury that could ensue.
This is known as medical malpractice informed consent.
In order to succeed in a medical malpractice claim against a doctor for failing to obtain informed consent to a medical procedure, the patient must prove:
- that he/she was not fully informed of the nature of any material risk of a procedure and any special or unusual risks related to the procedure;
- a reasonable person in the patient’s position, properly informed, would not have proceeded with the procedure; and
- an undisclosed material or special or unusual risk actually materialized and caused the patient damage.
When considering what a “reasonable person in the patient’s position” would have done, a modified objective test is applied by the courts. The modified objective test examines what a reasonable person in the patient’s individual circumstances would have done. Examples of a patient’s individual circumstances include age, income and marital status, as well as “special considerations” such as the patient’s reasonable beliefs, fears, desires and expectations.
Surprisingly, a patient’s testimony as to what he or she would have done, had the doctor given an adequate warning, is of little value.
On the other hand, a doctor’s habits within his/her medical practice are considered very relevant to the courts. If a doctor can show a judge what they regularly and typically do with other patients, then the courts may consider this to be convincing evidence on what occurred on the day in question.
The modified objective test and a doctor’s regular practice in informing patients about the risks of surgery was considered recently in Siever v. Interior Health Authority 2021 BCSC 880.
In that case, the injured claimant suffered severe nerve injuries to her face as a result of a surgery performed by a doctor neurosurgeon. One of the allegations of negligence against the doctor was failure to obtain informed consent to the procedure. In particular, it was alleged that the doctor did not inform her of alternative procedures or of the risks of the surgery she underwent which resulted in total fascial paralysis. To that end, she argued that she would not have undergone the surgery if she had been properly informed.
On the issue of informed consent, the trial judge considered the doctor’s testimony about his usual practice of informing patients of the risks of procedures and also applied the modified objective test.
At trial, the doctor was adamant as to his practice in describing the risks and alternatives. He testified that he provides similar advice to other patients routinely and from his perspective this was a routine patient consultation. The trial judge noted that it was an environment that did not have any markers that might impair his clear recollection such as stress, time pressure or distraction. There was furthermore no motivation to limit his advice to the injured claimant. The doctor’s consultation reports also set out details regarding his discussion about discussing the surgical risks with the injured claimant which he testified is his usual habit in his medical practice. Overall, the trial judge had the impression of his evidence was that he was honest and had a clear recall of what occurred.
The injured claimant had a very different recollection of the pre-surgical discussion with the doctor. She testified that, despite what the doctor testified to, she was not informed of alternative options or the risks of the surgery which included total facial paralysis. The trial judge questioned the reliability of this evidence. He noted that the injured claimant had been enduring long-standing severe pain and was highly stressed and fatigued at the pre-surgical consultation. He concluded that “pain, frustration, anger, multiple surgeries are markers that might account for less than clear recollection of a meeting that occurred more than six years earlier“. Overall, her evidence was considered by the trial judge to be inaccurate and incomplete due to memory issues clouded by her pain and emotions.
In applying the modified objective test, the trial judge also determined that a reasonable person in the injured claimant’s circumstances would have proceeded with the surgery despite the risks relying on the following factors:
- she had been dealing with facial pain since approximately 2005
- she had exhausted non-surgical treatment options
- by the time she saw the doctor, her pain was unbearable for her
- she had retreated from her social life and stated that she “could not go on living with her pain
The medical malpractice claim was ultimately dismissed against the doctor for failing to prove that the doctor was negligent.