As discussed in a prior blog issue on Medical Malpractice and Informed Consent, 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 issue of informed consent was considered by the Supreme Court of Canada in Cojocaru v. British Columbia Women’s Hospital and Health Centre 2013 SCC 30.
In this case, the injured claimant was a child who suffered brain damage during his birth at the British Columbia Women’s Hospital and Health Centre. HIs mother had previously given birth to a child by caesarean section in Romania. Her prenatal care obstetrician recommended that she attempt to deliver him by “vaginal birth after caesarean section” which is known in short as “VBAC”. On the day of the delivery, her labour was induced. During labour, she experienced a uterine rupture due to a scar from her previous caesarean section which, in turn, restricted the injured claimant’s oxygen supply. An emergency caesarean section was then performed. As a result, the injured claimant suffered brain damage which resulted in cerebral palsy. The injured claimant and his mother brought an action in negligence against the hospital, the attending nurses and all of the doctors involved.
At the first trial at the British Columbia Supreme Court, there were 2 informed consent issues considered by the trial judge:
- did the doctor provide the injured claimant’s mother with the required information such that she gave an informed consent to having a prostaglandin induction?
- did the doctor provide the injured claimant’s mother with the required information such that she gave an informed consent to having a VBAC delivery?
On the evidence, the trial judge found that the doctor was negligent in failing to disclose to the injured claimant’s mother the risks to both procedures and awarded approximately $4,000,000.00 in damages the majority of which related to the cost of future care.
The defendants (doctors, nurses and hospital) appealed the judgment on a technical issue alleging that the trial judge erred when he replicated large portions of the plaintiff’s submissions and, therefore failed to properly consider the defendant’s position. The British Columbia Court of Appeal agreed and ordered a new trial.
The injured claimant appealed the finding and the matter then proceeded to the Supreme Court of Canada.
In the decision, the Supreme Court of Canada made 2 important determinations.
First, the Supreme Court of Canada concluded that it would have been better if the trial judge at the BC Supreme Court had not copied from the submissions, but determined that this was not a sufficient reason to set aside that judgment.
Second, the Supreme Court of Canada on the issue of liability found one of the doctors negligent on the issue of informed consent. Specifically, the court concluded that this doctor did not provide the injured claimant’s mother with the necessary and required information to make an informed decision about whether or not to have the VBAC delivery. Negligence was founded on the doctor’s over estimation of the likelihood of success of a VBAC and she did not properly explain the statistical risks of a VBAC in terms of the risk to her life and her baby.