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Torts - Battery - Informed Consent

Torts - Medical Malpractice

Bollman v. Soenen (Ont CA, 2017)

Here the Court of Appeal reviewed principles applicable to informed consent in a medical malpractice case:
[28] In Reibl v. Hughes, the Supreme Court of Canada rejected a purely subjective test for causation in medical negligence cases alleging lack of informed consent and instead adopted a modified objective test. Under the modified objective test for causation, the court must consider whether a reasonable person in the plaintiff’s position would have declined the procedure at the time had proper disclosure been made.

[29] One of the major reasons for adopting a modified objective test for causation, rather than a subjective test, was that a subjective test would place too high a premium on hindsight – thus creating a risk that a patient who had suffered injury would be convinced she would not have undergone the procedure had proper disclosure been made.

[30] On the other hand, a purely objective test could place too high a premium on medical evidence, thus making it practically impossible to succeed with an action based on lack of informed consent – and also potentially ignoring the legitimate concerns of patients wishing to exercise their rights of freedom of choice.

[31] The Supreme Court has confirmed the modified objective test as the appropriate test in two subsequent decisions: Hollis v. Birch, 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634 and Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539.

[32] In the latter case, Cory J. described the considerations that led the court to adopt the modified objective test in Reibl v. Hughes as well as the precise contours of the test, at paras. 4-6, as follows:
Laskin C.J. … rejected the pure subjective approach to causation. He explained at p. 898 that the plaintiff’s testimony as to what he or she would have done, had the doctor given an adequate warning, is of little value:
It could hardly be expected that the patient who is suing would admit that he would have agreed to have the surgery, even knowing all the accompanying risks.

Accordingly the subjective test would necessarily cause the trier of fact to place too much weight on inherently unreliable testimony.

While an objective test would prevent an inappropriate emphasis being placed on the plaintiff’s testimony, Laskin C.J. thought that a purely objective test also presented problems. At p. 898, he discussed his paramount concern with an approach based on the actions of a hypothetical reasonable person:
... a vexing problem raised by the objective standard is whether causation could ever be established if the surgeon has recommended surgery which is warranted by the patient’s condition…. The objective standard of what a reasonable person in the patient’s position would do would seem to put a premium on the surgeon’s assessment of the relative need for the surgery and on supporting medical evidence of that need. Could it be reasonably refused?
In short, the purely objective standard might result in undue emphasis being placed on the medical evidence, essentially resulting in a test which defers completely to medical wisdom.

To balance the two problems, Laskin C.J. opted for a modified objective test for causation

The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any “particular concerns” of the patient and any “special considerations affecting the particular patient” in determining whether the patient would have refused treatment if given all the information about the possible risks. [Emphasis in original.]

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