Arndt v. Smith

Arndt v. Smith
Collection
Supreme Court Judgments
Date
1997-06-26
Report
[1997] 2 SCR 539
Case number
24943
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Torts
Notes
SCC Case Information: 24943
Decision Content
Arndt v. Smith, [1997] 2 S.C.R. 539
Margaret Smith Appellant
v.
Carole Arndt and Dennis Jackson Respondent
Indexed as: Arndt v. Smith
File No.: 24943.
1997: January 29; 1997: June 26.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Negligence ‑‑ Medical malpractice ‑‑ Causation ‑‑ Mother contracting chickenpox while pregnant ‑‑ Child born with disabilities resulting from mother’s chickenpox ‑‑ Mother suing doctor for costs associated with raising child ‑‑ Whether loss caused by doctor’s failure to advise properly of risk ‑‑ Appropriate test of causation.
A sued her physician S for costs associated with rearing her daughter, who was congenitally injured by chickenpox A had contracted during her pregnancy. She contended that had S properly advised her of the risk of injury to her fetus, she would have terminated the pregnancy and avoided the costs she now incurs. S contended that A would not have terminated the pregnancy even if she had been fully advised, and therefore asserted that the loss claimed was not caused by the failure to advise of risk. The trial judge dismissed A’s claim. Evaluating her testimony at trial that she would have had an abortion against the fact that she desired a child, that she was sceptical of “mainstream” medical intervention, that an abortion in the second trimester held increased risks and that an abortion would have required the approval of a committee on health grounds, the trial judge concluded that A would not, on a balance of probabilities, have aborted the pregnancy. Also supportive of the trial judge’s conclusion was evidence that the risk of serious injury to the fetus was very small and medical advisers would have recommended against an abortion. The Court of Appeal held that the trial judge had applied the wrong test and directed a new trial.
Held (Sopinka and Iacobucci JJ. dissenting): The appeal should be allowed.
A’s claims for economic loss are not barred by s. 3(1)(a) of the British Columbia Limitation Act, which provides a two‑year limitation period in actions for “damages in respect of injury to person or property, including economic loss arising from the injury”, because they do not relate to personal injury either to A or to her daughter.
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Major JJ.: When determining whether the loss claimed by A was caused by S’s failure to advise of the risk the court should adopt the modified objective test set out in Reibl v. Hughes. 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 plaintiff’s circumstances 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. The “reasonable person” who sets the standard for the objective test must be taken to possess the patient’s reasonable beliefs, fears, desires and expectations. While evidence of reasonable fears and concerns can thus be taken into account, purely subjective fears which are not related to the material risks should not be considered. The modified objective test strikes a reasonable balance, which cannot be obtained through either a purely objective or a purely subjective approach. A purely subjective approach fails to take into account the inherent unreliability of the self‑serving assertion of a plaintiff, while 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.
It is appropriate to infer from the evidence in this case that a reasonable person in the plaintiff’s position would not have decided to terminate her pregnancy in the face of the very small increased risk to the fetus posed by her exposure to the virus which causes chickenpox. While A did make a very general inquiry concerning the risks associated with maternal chickenpox, there was nothing to indicate to the doctor that she had a particular concern in this regard. Further, factors such as A’s desire for children and her suspicion of the mainstream medical profession can be taken into consideration when determining what a reasonable person in her position would have done if informed of the risks. As found by the trial judge, the failure to disclose some of the risks to the fetus associated with maternal chickenpox did not affect A’s decision to continue the pregnancy to term. It follows that the failure to disclose did not cause the financial losses for which she is seeking compensation.
Per McLachlin J.: This case raises the hypothetical question of what the plaintiff would have done had the physician discharged her duty to disclose. General tort principles suggest that this question is a purely factual inquiry to be answered by reference to all the evidence. This may include evidence from the plaintiff at trial as to what she would have done, but it also includes relevant evidence of her situation, circumstances and mind‑set at the time the decision would have been made. The trial judge must look at all the evidence and determine whether the plaintiff would have taken the suggested course on a balance of probabilities. The approach suggested by the fundamental principles of tort law is subjective, in that it requires consideration of what the plaintiff at bar would have done. However, it incorporates elements of objectivity; the plaintiff’s subjective belief at trial that she would have followed a certain course stands to be tested by her circumstances and attitudes at the time the decision would have been made as well as the medical advice she would have received at the time.
The trial judge applied the right test in this case and did not err in dismissing the action on the ground that A had failed to establish that S’s failure to advise her of the risk to her fetus from chickenpox caused the loss associated with the rearing of her disabled daughter. While he paid lip service to the reasonable person test, he resolved the issue of causation by asking what the plaintiff herself would have done in all the circumstances. He considered a number of external circumstances, including the fact that an abortion in the second trimester would have been riskier than an earlier abortion and the need to obtain the approval of a committee for any abortion. He went on to consider factors going to A’s state of mind, including the fact that she very much wanted to have a child, that she had a natural skepticism of mainstream medicine and had so informed S and that she stated she did not want an ultrasound scan of the developing fetus. The fact that the medical profession would not have recommended an abortion in these circumstances also supports the trial judge’s conclusion that A would not have chosen an abortion had she been advised of the very small increased risk to the fetus posed by chickenpox.
Per Sopinka and Iacobucci JJ. (dissenting): As found by McLachlin J., the appropriate test of causation in the present circumstances is not to ask what the “reasonable person” would have done in A’s position, but is to ask what A herself would have done had she been fully apprised of the risks to the fetus resulting from her chickenpox. The trial judge did not apply the appropriate test, however, but applied an objective test. He repeatedly referred to the pivotal role played in his causation analysis by the “reasonable and prudent expectant mother” and did not consider A’s evidence that she would have aborted the fetus if fully informed of the relevant risks because of his view of the objective nature of the causation test. At best, the trial judge’s reasons are unclear on the question of which test for causation was applied. This lack of clarity itself would warrant a new trial. In the further alternative, even if the trial judge did purport to apply a nominally subjective test, the failure to consider A’s testimony would constitute an error of law justifying a new trial.
Cases Cited
By Cory J.
Applied: Reibl v. Hughes, [1980] 2 S.C.R. 880; referred to: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634.
By McLachlin J.
Considered: Reibl v. Hughes, [1980] 2 S.C.R. 880; referred to: Norberg v. Wynrib, [1992] 2 S.C.R. 226; Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634; Laferrière v. Lawson, [1991] 1 S.C.R. 541; Chatterton v. Gerson, [1981] 1 Q.B. 432; Hills v. Potter, [1983] 3 All E.R. 716; Sidaway v. Bethlem Royal Hospital Governors, [1985] 1 All E.R. 643; Ellis v. Wallsend District Hospital (1989), 17 N.S.W.L.R. 553; Canterbury v. Spence, 464 F.2d 772 (1972); Young v. Northern Territory of Australia (1992), 107 F.L.R. 264; Bernard v. Char, 903 P.2d 667 (1995); Scott v. Bradford, 606 P.2d 554 (1979); Smith v. Reisig, 686 P.2d 285 (1984); Arena v. Gingrich, 733 P.2d 75 (1987); Cobbs v. Grant, 502 P.2d 1 (1972); Martin v. Insurance Corp. of British Columbia (1979), 13 B.C.L.R. 163.
Statutes and Regulations Cited
Limitation Act, R.S.B.C. 1979, c. 236, s. 3(1)(a).
Authors Cited
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law Book Co., 1983.
Fontigny, Nadine. “When Yes Really Means Yes: The Law of Informed Consent in Canada Revisited” (1996), 4 Health L. Rev. 17.
“Informed Consent ‑‑ A Proposed Standard for Medical Disclosure” (1973), 48 N.Y.U. L. Rev. 548.
Osborne, Philip H. Annotation to Arndt v. Smith (1995), 25 C.C.L.T. (2d) 264.
Osborne, Philip H. “Causation and the Emerging Canadian Doctrine of Informed Consent to Medical Treatment” (1985), 33 C.C.L.T. 131.
Robertson, Gerald. “Informed Consent Ten Years Later: The Impact of Reibl v. Hughes” (1991), 70 Can. Bar Rev. 423.
APPEAL from a judgment of the British Columbia Court of Appeal (1995), 6 B.C.L.R. (3d) 201, 126 D.L.R. (4th) 705, [1995] 7 W.W.R. 378, 61 B.C.A.C. 57, 100 W.A.C. 57, 25 C.C.L.T. (2d) 262, reversing a decision of the British Columbia Supreme Court (1994), 93 B.C.L.R. (2d) 220, [1994] 8 W.W.R. 568, 21 C.C.L.T. (2d) 66, dismissing the respondents’ claim against the appellant physician. Appeal allowed, Sopinka and Iacobucci JJ. dissenting.
Christopher E. Hinkson, Q.C., and Andrew F. Wilkinson, for the appellant.
Nathan H. Smith, for the respondents.
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory and Major JJ. was delivered by
//Cory J.//
1 Cory J. -- I have had the benefit of reading the cogent reasons of McLachlin J. I agree with her analysis regarding the Limitation Act issue and with her disposition of this appeal. However, I come to a different conclusion as to the test which should be applied when determining whether the loss claimed by the plaintiff was caused by the doctor’s failure to advise of the risk.
2 The starting point for this question must be Reibl v. Hughes, [1980] 2 S.C.R. 880, which set out the basic principles for assessing causation in cases involving allegations of negligence by doctors. Reibl involved an action by a patient against a surgeon for failing to warn him of the risk of paralysis associated with the elective surgery performed by that surgeon. One of the defences raised was that even if the surgeon had disclosed all of the risks of the procedure, the plaintiff would nonetheless have gone ahead with the operation. In other words, the physician disputed whether his negligent failure to disclose had, in fact, caused the plaintiff’s loss.
3 The question presented to the Court was how to determine whether the patient would have actually chosen to decline the surgery if he had been properly informed of the risks. In trying to craft the appropriate test, Laskin C.J. for a unanimous Court quoted with approval an article from the New York University Law Review, entitled “Informed Consent ‑‑ A Proposed Standard for Medical Disclosure” (1973), 48 N.Y.U. L. Rev. 548. The article distinguished between a subjective test, which asks whether the particular patient would have foregone treatment if properly informed, and an objective test, which asks whether the average prudent person in the patient’s position would have foregone treatment if informed of all material risks. The authors preferred the objective test, since the subjective standard suffered from what they deemed to be a “gross defect”: “[I]t depends on the plaintiff’s testimony as to his state of mind, thereby exposing the physician to the patient’s hindsight and bitterness” (p. 550).
4 Laskin C.J. shared the authors’ concerns about the subjective test, and 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. His suit would indicate that, having suffered serious disablement because of the surgery, he is convinced that he would not have permitted it if there had been proper disclosure of the risks, balanced by the risks of refusing the surgery. Yet, to apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.
In other words, the plaintiff would always testify that the failure to warn was the determining factor in his or her decision to take the harmful course of action. Accordingly the subjective test would necessarily cause the trier of fact to place too much weight on inherently unreliable testimony.
5 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. Can it be said that a reasonable person in the patient’s position, to whom proper disclosure of attendant risks has been made, would decide against the surgery, that is, against the surgeon’s recommendation that it be undergone? 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.
6 To balance the two problems, Laskin C.J. opted for a modified objective test for causation, which he set out at length at pp. 898‑900 :
I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material. And so too are any special considerations affecting the particular patient. For example, the patient may have asked specific questions which were either brushed aside or were not fully answered or were answered wrongly. In the present case, the anticipation of a full pension would be a special consideration, and, while it would have to be viewed objectively, it emerges from the patient’s particular circumstances. So too, other aspects of the objective standard would have to be geared to what the average prudent person, the reasonable person in the patient’s particular position, would agree to or not agree to, if all material and special risks of going ahead with the surgery or foregoing it were made known to him. Far from making the patient’s own testimony irrelevant, it is essential to his case that he put his own position forward.
The adoption of an objective standard does not mean that the issue of causation is completely in the hands of the surgeon. Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient’s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it. The patient’s particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon’s recommendation. Admittedly, if the risk of foregoing the surgery would be considerably graver to a patient than the risks attendant upon it, the objective standard would favour exoneration of the surgeon who has not made the required disclosure. Since liability rests only in negligence, in a failure to disclose material risks, the issue of causation would be in the patient’s hands on a subjective test, and would, if his evidence was accepted, result inevitably in liability unless, of course, there was a finding that there was no breach of the duty of disclosure. In my view, therefore, the objective standard is the preferable one on the issue of causation.
In saying that the test is based on the decision that a reasonable person in the patient’s position would have made, I should make it clear that the patient’s particular concerns must also be reasonably based; otherwise, there would be more subjectivity than would be warranted under an objective test. Thus, for example, fears which are not related to the material risks which should have been but were not disclosed would not be causative factors. However, economic considerations could reasonably go to causation where, for example, the loss of an eye as a result of non‑disclosure of a material risk brings about the loss of a job for which good eyesight is required. In short, although account must be taken of a patient’s particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.
These words are as persuasive today as they were when they were written. 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.
7 This Court recently had occasion to reconsider the modified objective test in Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634. La Forest J. for the majority held that a subjective test was appropriate for an action against a manufacturer of breast implants when determining whether the failure to warn of the risks associated with the implants caused the harm. However, he specifically supported the continuing application of the modified objective standard in negligence actions between a doctor and patient. He emphasized at p. 675 the unique policy concerns associated with the doctor‑patient relationship, which justify the modification of the usual approach to causation followed in other tortious actions.
. . . the duty of the doctor is to give the best medical advice and service he or she can give to a particular patient in a specific context. It is by no means coterminous with that of the manufacturer of products used in rendering that service. The manufacturer, on the other hand, can be expected to act in a more self‑interested manner. In the case of a manufacturer, therefore, there is a greater likelihood that the value of a product will be overemphasized and the risk underemphasized. It is, therefore, highly desirable from a policy perspective to hold the manufacturer to a strict standard of warning consumers of dangerous side effects to these products.
To elaborate on the distinction between manufacturers and doctors, I believe it is important to note that negligence actions against members of the medical profession based on a failure to warn will inevitably be hypothetical, because they are based on constructing what would have happened if the patient had been fully informed of the risks of a procedure. This introduces a degree of uncertainty into the analysis. Often, this uncertainty will be increased by the difficulty of determining the extent of a doctor’s obligation to inform in a case where, based upon his or her professional knowledge and experience, the doctor believed that the risk was too insignificant to warrant advising the patient of it. On the other hand, pharmaceutical manufacturers have no reason not to provide the medical profession at least, if not the public generally, with all available information concerning the medication they put on the market. It follows that it is eminently sensible to apply a more flexible standard of causation to doctors than to manufacturers.
8 Sopinka J. (McLachlin J. concurring) wrote a dissenting opinion in Hollis, but he joined with the majority in endorsing the modified objective test from Reibl. He also elaborated upon the advantages of this approach to causation. A subjective approach, he explained, fails to take into account the inherent unreliability of the self‑serving assertion of a plaintiff. The plaintiff may honestly believe that he would not have consented to a procedure if all the risks were disclosed. However, this is only the plaintiff’s opinion about what he would have done in a situation which never arose. As such, the opinion may be honestly held and given, but rejected by the trier of fact. As Sopinka J. stated at pp. 688‑89:
In evaluating the opinion, the trier of fact must discount its probity not only by reason of its self‑serving nature, but also by reason of the fact that it is likely to be coloured by the trauma occasioned by the failed procedure. For this reason, the most reliable approach in determining what would in fact have occurred is to test the plaintiff’s assertion by reference to objective evidence as to what a reasonable person would have done. [Emphasis in original.]
At p. 690, Sopinka J. stated his preference for the modified objective standard:
The Reibl approach is a more reliable method of determining what [the plaintiff’s] choice would have been. The subjective test places too much of a premium on the plaintiff’s present belief as to what it would have been.
In the end, therefore, both the majority and minority judgments explicitly endorsed the continued application of the modified objective test from Reibl for negligence actions by a patient against a doctor. The decision in Hollis is a very strong and recent affirmation of the Reibl test and should not be lightly disregarded.
9 Some of the criticisms directed at the Reibl test may stem from confusion as to what Laskin C.J. intended in his adoption of a modified objective test. The uncertainty surrounds the basic premise that the test depends upon the actions of a reasonable person in the plaintiff’s circumstances. Which aspects of the plaintiff’s personal circumstances should be attributed to the reasonable person? There is no doubt that objectively ascertainable circumstances, such as a plaintiff’s age, income, marital status, and other factors, should be taken into consideration. However, Laskin C.J. didn’t stop there. He went on and stated that “special considerations” affecting the particular patient should be considered, as should any “specific questions” asked of the physician by the patient. In my view this means that the “reasonable person” who sets the standard for the objective test must be taken to possess the patient’s reasonable beliefs, fears, desires and expectations. Further, the patient’s expectations and concerns will usually be revealed by the questions posed. Certainly, they will indicate the specific concerns of the particular patient at the time consent was given to a proposed course of treatment. The questions, by revealing the patient’s concerns, will provide an indication of the patient’s state of mind, which can be relevant in considering and applying the modified objective test.
10 An example may serve to illustrate this. Imagine a patient considering plastic surgery on his nose. During a pre‑operative consultation, the patient asks if the surgery will affect his sense of smell. The physician fails to fairly and adequately explain the attendant risks to this sensory function and does not mention that a certain percentage of patients suffer a permanent loss of a small fraction of their ability to smell. After the surgery, the patient can no longer smell with the same acuity food that is cooking. Under Laskin C.J.’s test in Reibl, the patient’s question about the risks to his sense of smell are clearly relevant. The question posed suggests that the patient had a special concern about losing the sense of smell. This is not an unreasonable concern. The loss of a keen sensory perception of smell which is so closely related to the sense of taste is crucial to both those who artistically prepare and those who have a particular appreciation for finely prepared food. This special fear of the loss of a keen sense of smell could be considered by the trier of fact in determining whether the reasonable person with the particular expressed concern of the plaintiff would have consented to the proposed course of treatment if all the risks had been disclosed.
11 As another example, let us consider a patient who asks his doctor about a proposed procedure, and particularly poses questions as to whether there might be any effect on his hearing, without advising the doctor of his particular passion for the singing of operatic sopranos. If the doctor fails to inform the patient of the possibility that the procedure could limit his ability to hear in the upper ranges, the Reibl test would allow the trier of fact to consider the questions posed by the patient in determining whether he would have consented to the proposed treatment if he had been properly informed of all the risks. Again, the questions asked by this patient may act as an indication of his own reasonable fears and concerns, which are appropriate modifiers of the hypothetical reasonable person.
12 As further evidence that the patient’s state of mind is relevant to the Reibl test, Laskin C.J. goes on at pp. 899‑900 to caution that the trier of fact may only take into account those particular concerns of the patient which are reasonable:
[T]he patient’s particular concerns must also be reasonably based. . . . Thus, for example, fears which are not related to the material risks which should have been but were not disclosed would not be causative factors.
Clearly, evidence of reasonable fears and concerns can be taken into consideration and this is evidence which could go to establishing the plaintiff’s subjective state of mind. Therefore, it is apparent that Laskin C.J. intended that the reasonable subjective beliefs of the patient should be attributed to the hypothetical reasonable person used to set the objective standard in order to properly reflect the circumstances of the plaintiff.
13 If the patient’s fears and beliefs were not considered when assessing how the “reasonable person in the patient’s position” would have responded had all risks of a procedure been disclosed, absurd verdicts could be produced. For example, let us suppose that a plaintiff brought an action based on her doctor’s failure to disclose that there was a very significant risk of her giving birth to a disabled child, that the risk was material and the only issue was causation. If the plaintiff’s beliefs are not to be considered, the trier of fact could conclude that a reasonable person in the position of the plaintiff would have chosen to terminate the pregnancy and find in favour of the patient even if the plaintiff was so resolutely and unalterably opposed to abortion that she would never have terminated the pregnancy. The failure to disclose would not have been the actual cause of the harm. Despite this, under the purely objective standard, the plaintiff could recover. This example demonstrates why it is important to include some subjective aspects in the assessment of what the reasonable person in the position of the plaintiff would have done if all the risks had been disclosed.
14 Laskin C.J. carefully noted that purely subjective fears which are not related to the material risks should not be taken into account in applying the modified objective test. In other words, fears which are idiosyncratic, which do not relate directly to the material risks of a proposed treatment and which would often be unknown to a physician, cannot be considered. This is what ensures that the objective standard truly is based on the actions of a “reasonable person”. It means that a doctor will not be held responsible for damages attributable to a plaintiff’s idiosyncrasies. It ensures that a plaintiff would not be able to successfully prove causation simply by demonstrating an irrational fear which, had the physician disclosed all the risks, would have convinced the plaintiff to forego medical treatment. For example, if a doctor failed to tell the patient that one of the risks of a procedure was an allergic reaction which could cause a temporary red rash on the skin, and the patient had an irrational belief that a rash is a highly significant and dangerous sign of evil spirits in the body, the patient could not successfully prove causation by demonstrating that he would not have proceeded with the treatment on the basis of this irrational fear.
15 Reibl is a very significant and leading authority. It marks the rejection of the paternalistic approach to determining how much information should be given to patients. It emphasizes the patient’s right to know and ensures that patients will have the benefit of a high standard of disclosure. At the same time, its modified objective test for causation ensures that our medical system will have some protection in the face of liability claims from patients influenced by unreasonable fears and beliefs, while still accommodating all the reasonable individual concerns and circumstances of plaintiffs. The test is flexible enough to enable a court to take into account a wide range of the personal circumstances of the plaintiff, and at the same time to recognize that physicians should not be held responsible when the idiosyncratic beliefs of their patients might have prompted unpredictable and unreasonable treatment decisions.
16 The Reibl test has had the desired effect of ensuring that patients have all the requisite information to make an informed decision regarding the medical procedure they are contemplating. Members of the medical and legal professions are familiar with its requirements. It strikes a reasonable balance, which cannot be obtained through either a purely objective or a purely subjective approach. A purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness that cannot be accepted. It would bring inequitable and unnecessary pressure to bear upon the overburdened medical profession. On the other hand, a purely objective test which would set the standard by a reasonable person without the reasonable fears, concerns and circumstances of the particular plaintiff would unduly favour the medical profession.
17 It has been said that a subjective test, despite its dangers, is the most logical. Yet pure logic cannot achieve the fairness attained by the application of Reibl test. It is said that there is nothing to distinguish between the subjective test and the modified objective test. If that were the case there could be no grounds for complaint from those who favour the subjective test. Yet in my view there is a very real distinction. The modified objective test serves to eliminate from consideration the honestly held but idiosyncratic and unreasonable or irrational beliefs of patients. The Reibl test is fair and has recently been approved in the Hollis case. No useful purpose would be served by changing it. Indeed, to do so may unnecessarily add to the high cost of providing medical care. In short, I see no reason to abandon the modified objective test to causation set down in Reibl, a test which asks whether a reasonable person in the circumstances of the plaintiff would have consented to the proposed treatment if all the risks had been disclosed.
18 Turning now to this appeal, it is appropriate to infer from the evidence that a reasonable person in the plaintiff’s position would not have decided to terminate her pregnancy in the face of the very small increased risk to the fetus posed by her exposure to the virus which causes chickenpox. Ms. Arndt did make a very general inquiry concerning the risks associated with maternal chickenpox. However, it should not be forgotten that the risk was indeed very small. In the absence of a specific and clearly expressed concern, there was nothing to indicate to the doctor that she had a particular concern in this regard. It follows that there was nothing disclosed by Ms. Arndt’s question which could be used by the trier of fact as an indication of a particular fear regarding the possibility of giving birth to a disabled child which should be attributed to the hypothetical reasonable person in the patient’s situation. Further, factors such as the plaintiff’s desire for children and her suspicion of the mainstream medical profession can be taken into consideration when determining what a reasonable person in the plaintiff’s position would have done if informed of the risks. It is not necessary to assess the relative importance these beliefs would have in the determination of the question of causation. It is sufficient to observe that all these are factors indicating the state of mind of the plaintiff at the time she would have had to make the decision, and therefore may be properly considered by the trier of fact. I agree with the trial judge that the failure to disclose some of the risks to the fetus associated with maternal chickenpox did not affect the plaintiff’s decision to continue the pregnancy to term. It follows that the failure to disclose did not cause the financial losses for which the plaintiff is seeking compensation.
19 I would allow this appeal, set aside the judgment of the Court of Appeal and reinstate the judgment of the trial judge. The defendant should have her costs of the proceedings in this Court and the courts below.
The following are the reasons delivered by
//Sopinka and Iacobucci JJ.//
20 Sopinka and Iacobucci JJ. (dissenting) -- We have read the reasons of our colleague McLachlin J. We agree with her analysis of the Limitation Act issue and also agree with much of her analysis on causation. In particular, we agree that the appropriate test of causation in the present circumstances is not to ask what the “reasonable person” would have done in the position of the plaintiff Ms. Arndt, but rather the appropriate test is to ask what Ms. Arndt herself would have done had she been fully apprised of the risks to the fetus resulting from her chickenpox. We respectfully disagree, however, with McLachlin J.’s proposed disposition of the present appeal.
21 McLachlin J. concludes that the trial judge in the instant case applied the appropriate test of causation by asking himself whether the particular plaintiff at bar would have carried the fetus to term had she been fully apprised of the risks. She states at para. 34 that while the trial judge “allud[ed] to a ‘reasonable person’ test, [he] asked himself whether, on all the evidence, the plaintiff would have chosen to abort her pregnancy had she been advised of the risk of injury to her fetus from her chickenpox.” She further states at para. 69 that the trial judge simply “paid lip service to the reasonable person test”. We cannot agree with her conclusion in this regard.
22 In our view, the trial judge applied an objective test. In the alternative, at best the reasons for judgment are unclear as to which test was applied. In the further alternative, even if the trial judge did purport to apply a nominally subjective test, in doing so, he wrongly disregarded the testimony of the plaintiff, on the basis that it could play no role in his causation analysis. The presence of any one of these alternatives necessitates a new trial.
23 Certain portions of the judgment are consistent with the application of a subjective test. For example, as McLachlin J. points out, the trial judge stated ((1994), 93 B.C.L.R. (2d) 220, at p. 223):
In the case at bar, I find Ms. Arndt would have chosen in foresight to carry Miranda to full term had she been fully cognizant of all the risks and the chance of such risks occurring.
24 However, in our opinion, other parts of the trial judge’s reasons indicate that the causation test applied was not subjective, as McLachlin J. maintains, but rather objective. On more than one occasion, the trial judge emphasized the need to determine causation according to an objective standard. For example, he said (at p. 222):
If a physician fails to warn his or her patient of all material risks, the issue of whether that patient would have requested a therapeutic abortion had she been advised of those risks must be determined objectively by the trier of fact after taking into account the patient and her particular circumstances. [Emphasis added.]
And, later in his reasons (at p. 230):
[W]here a pregnant woman has not been fully warned of all risks faced by her fetus, and then makes an uninformed consent regarding abortion, the law dictates that trial judges must determine, on an objective basis, whether or not a “reasonable and prudent” expectant mother would have undergone a therapeutic abortion had she been adequately warned. [Emphasis added.]
25 The most telling argument against the view that the trial judge applied a subjective test is his treatment of the evidence of the plaintiff. Under the subjective test, the function of the objective evidence is to test the reliability of the plaintiff’s assertion as to what her conduct would have been if properly warned. The plaintiff’s evidence is crucial in this regard. While the plaintiff’s evidence must be evaluated by reference to its reasonableness, in the final analysis it is the plaintiff’s evidence that is either accepted or rejected. In the instant case, having adverted to the plaintiff’s testimony that she would have aborted the fetus if fully informed of the relevant risks, the trial judge goes on to imply that this testimony is n