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Torts - Negligence - Medical Disclosure. Denman v. Radovanovic
In Denman v. Radovanovic (Ont CA, 2024) the Ontario Court of Appeal considers a negligence claim of "failure to make adequate disclosure to a patient" ('informed consent'), in close conjunction with medical battery facts:(1) Legal principles
(a) The law of informed consent
[42] At the outset it is important to distinguish between consent as it relates to the tort of battery and informed consent in the context of a negligence claim. As some have commented, the terminology “informed consent” has led to some confusion.[1]
[43] Where there is a failure to make adequate disclosure to a patient, this gives rise to a claim in negligence. It does not, however, vitiate consent to treatment so as to give rise to a claim in battery. A claim in battery will only arise in circumstances where there was no consent at all or where the treatment went beyond the scope of consent: Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880, at pp. 890-91.
[44] The issue in this appeal is not whether consent was given to the various procedures Mr. Denman underwent. In each case, consent was obtained from Mr. Denman. Had consent not been obtained, clearly the physician who carried out the procedure would be liable in battery. Rather, the issue here is whether the consent that Mr. Denman gave was an informed consent.
[45] It is well established that, before undertaking the elective treatment of a patient, a physician has a duty, without being questioned, to provide adequate information to the patient. This involves disclosing the nature of the proposed treatment and any material, special, or unusual risks of the treatment: Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634, at para. 24. Where more than one viable option to manage the patient’s medical condition is available, the patient is also to be informed of the relative and comparative risks and benefits between the options. The extent to which a doctor must disclose and discuss alternative treatments will depend upon what has been described as “a myriad of factual circumstances”: Van Dyke v. Grey Bruce Regional Health Centre (2005), 2005 CanLII 18841 (ON CA), 255 D.L.R. (4th) 397 (Ont. C.A.), at para. 67.
[46] This court affirmed the importance of a patient being equipped with the information necessary to make an informed choice between alternative courses of treatment in Van Dyke, at para. 67:The ultimate decision whether to proceed with a particular treatment rests with the patient and not the doctor. The doctor must equip the patient with the information necessary to make an informed choice. Where there is more than one medically reasonable treatment and the risk/benefit analysis engaged by the alternatives involves different considerations, a reasonable person would want to know about the alternatives and would want the assistance of the doctor’s risk/benefit analysis of the various possible treatments before deciding whether to proceed with a specific treatment. Put differently, a reasonable person could not make an informed decision to proceed with treatment “A” if that patient was unaware of the risks and benefits associated with treatment “B”, a medically appropriate alternative treatment. [Emphasis added.] [47] A patient alleging lack of informed consent must not only prove that the information provided was inadequate but must also establish causation. Specifically, the patient must prove that (1) they would not have undergone the procedure had they been adequately informed, and (2) a reasonable person in the patient’s position would not have undergone the procedure if given adequate information: Watson v. Dr. Shawn Soon, 2018 ONSC 3809, 50 C.C.L.T. (4th) 83, at para. 82, citing Bollman v. Soenen, 2014 ONCA 36, 315 O.A.C. 90, at paras. 20-23. In other words, in assessing causation there is a subjective and modified objective test.
[48] To succeed in a claim of informed consent, it is sufficient that a plaintiff demonstrate that they would have declined treatment at that particular time, even if only to postpone it to a later date: Reibl, at p. 928; Felde v. Vein and Laser Medical Centre (2003), 2003 CanLII 19431 (ON CA), 68 O.R. (3d) 97 (C.A.), at para. 14; Ross v. Welsh, 2003 CanLII 27587 (Ont. S.C.), at paras. 156-57.
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(i) No requirement to provide particular statistics
[63] The appellants submit that the trial judge erred in imposing a duty to provide exact statistical probabilities since case law makes clear that such level of detail is not required to fulfil the duty of disclosure.
[64] I disagree. On a fair reading of her reasons, the trial judge imposed no requirement to provide a specific calculation of the level of risk or specific statistics in explaining the risk. Rather, what was required in this case was that an order of magnitude or reasonable range of risks involved in the proposed treatment be disclosed.
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[87] The notion that it is only the physician who performs a procedure that is susceptible to liability stems from the pre-Reibl era, when lack of consent was historically associated with the intentional tort of battery which, as explained in Reibl, “consist[s] of an unprivileged and unconsented to invasion of one’s bodily security”: at p. 890.
[88] Unlike with the tort of battery, claims in negligence do not necessarily require an unauthorized invasion of a patient’s body. As Laskin C.J.C. (as he then was) explained in Reibl, which established a distinction between negligence and battery, the concern in negligence is the adequacy of disclosure to the patient.
[89] The case of Ferguson v. Hamilton Civic Hospitals (1983), 1983 CanLII 3059 (ON SC), 144 D.L.R. (3d) 214 (Ont. S.C.), aff’d (1985), 1985 CanLII 2045 (ON CA), 50 O.R. (2d) 754 (C.A.), is at odds with the appellants’ submission that only a physician conducting a procedure has an obligation to provide the patient with adequate disclosure. In that case, Dr. Murray, a neurosurgeon and the patient’s attending physician, examined the patient and concluded that further investigations, including an angiogram, were necessary to determine the cause of the patient’s symptoms. As a result of the angiogram, the patient suffered a serious injury. Although Dr. Murray was the doctor who proposed the procedure, it was ultimately carried out by Dr. Isaac, a radiology resident. Krever J. acknowledged that:[a]lthough there may be cases in which a doctor requesting the performance of a procedure may be entitled to leave the observation of the duty of informing to the performing doctor..., that cannot be so when the requesting doctor knows that the performing doctor does not have the qualifications to do so: at para. 62.
In that particular case, Krever J. found that Dr. Murray was under a duty to discuss the alternatives to the angiogram and their risks with his patient, even though he was not the doctor performing the procedure that caused harm. In that case, although both Dr. Murray and Dr. Isaac provided inadequate disclosure to the patient, there was no liability because the patient failed to prove causation. [90] As Ferguson and the case at hand illustrate, modern medical treatment may involve a team of doctors working together. Section 13 of the HCCA recognizes the reality of team-based treatment. It provides that “[i]f a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved” propose the plan of treatment and obtain consent or a refusal of consent.
[91] In conclusion, as Ferguson illustrates, a physician not performing a procedure may, depending on the circumstances, have a duty of disclosure. Whether there is liability will depend on causation.
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[105] If one were to accept Dr. ter Brugge’s approach of only informing Mr. Denman of the risk involved in the first embolization, the disclosure required for Mr. Denman to allow for informed consent would have to encompass both the risks and benefits of the proposed procedure: Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341, at para. 18; Huisman v. MacDonald, 2007 ONCA 391, 280 D.L.R. (4th) 1, at para. 44. Given that it was known that multiple embolizations and a surgical resection would likely be necessary to resolve Mr. Denman’s AVM, and that a single embolization was of no benefit, Dr. ter Brugge would have to have advised Mr. Denman that he was proposing that he undergo a procedure with no likely benefit but significant risk. Clearly, neither Mr. Denman nor a reasonable person in his position would agree to proceed with such a treatment.
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