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, properly informed, would not have proceeded with the procedure” 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.
In Quinn v. Chuah 2022 BCSC 157, the injured claimant brought an action in medical malpractice against a surgeon who performed gallbladder removal surgery for failing to obtain informed consent. In particular, she alleged that the surgeon did not advise her of the material risks of the surgery and the risk of a cystic duct stump leak of bile into her abdomen which developed after the surgery. The trial focused on the pre-surgery meeting between the injured claimant and the surgeon and whether he properly informed her of this specific risk.
The injured claimant’s credibility was squarely at issue. The trial judge found that she was neither a credible or reliable witness due to numerous significant inconsistencies in her trial testimony, examination for discovery evidence and medical records.
The surgeon testified that he explained the surgical risks to the injured claimant. He testified that his standard practice is to inform his patients of all risks. He was adamant that he always explains to his patients the risk of a bile duct injury and tells them it is serious when it happens. He testified, however, that he did not mention the risk of a cystic duct stump bile leak (which the injured claimant suffered from post-surgery) because that specific risk is included under the risk of a bile duct injury and that it is minor not as serious.
Several experts testified on the standard of care expected of the surgeon and whether he was required to advise the injured claimant about the risk of a cystic duct stump bile leak which ultimately occurred. All experts, even the expert on behalf of the injured claimant, testified that the surgeon did meet the standard of care by advising the injured claimant of the bile duct injury, which would include a cystic duct stump leak which is considered to be a minor injury.
The trial judge dismissed the claim in its entirety to which the injured claimant was not awarded any compensation as she failed to prove that the surgeon fell below the standard of care expected of him in failing to specifically warn her of the risk of a cystic duct stump bile leak:
[105] The onus is on the plaintiff to prove the standard of care and a breach of the standard of care. That onus has not been discharged in reference to these non-disclosure allegations. All of the above alleged incidents of non-disclosure relate to the propriety or necessity of the surgery. Importantly, both Dr. Davison and Dr. Smith were of the view that the recommendation for surgery was appropriate. There is simply no evidence before me from which I could infer that Dr. Chuah breached the standard of care by failing to disclose or discuss these various items with the plaintiff.
[106] Accordingly, in my view, the plaintiff has failed to establish that Dr. Chuah failed to inform her of a material, special or unusual risk of the proposed surgery. It follows that the plaintiff’s claim must be dismissed.