Reibl v. Hughes

Reibl v. Hughes
Collection
Supreme Court Judgments
Date
1980-10-07
Report
[1980] 2 SCR 880
Judges
Laskin, Bora; Martland, Ronald; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien
On appeal from
Ontario
Subjects
Criminal law
Professional law
Decision Content
Supreme Court of Canada
Reibl v. Hughes, [1980] 2 S.C.R. 880
Date: 1980-10-07
John Reibl (Plaintiff) Appellant;
and
Robert A. Hughes (Defendant) Respondent.
1980: June 5; 1980: October 7.
Present: Laskin C.J. and Martland, Dickson, Beetz, Estey, Mclntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Battery—Consent—Disclosure—Endarterectomy to reduce risk of later stroke—Risk of stroke or death during or in aftermath of surgery—Stroke suffered causing paralysis—No disclosure save for advice that possibility of stroke greater without operation—Whether or not consent valid—Whether or not battery.
Physicians and surgeons—Negligence—Duty of care—Disclosure—Causation—Endarterectomy to reduce risk of stroke—Risk of stroke or death during or in aftermath of surgery—Stroke suffered causing paralysis—No disclosure save for advice that possibility of stroke greater without operation—Respondent aware of appellant’s concern about the vesting of his pension—Whether or not respondent negligent.
While or immediately after undergoing serious but competently performed surgery, Reibl suffered a massive stroke causing paralysis on the right side of the body and impotence. Stroke, paralysis, or even death, were among the risks attending both this surgery or its aftermath and the patient’s refusal to undergo the operation. In answering the patient’s query about the possibility of stroke, the surgeon did not inform him of his chance of being paralyzed during or shortly after the operation but stressed that the chances of paralysis were greater if the patient did not undergo surgery. The patient testified that he would have foregone this elective surgery until a lifetime retirement pension had vested in a year and a half, and would have opted for a shorter, normal life rather than a longer one as a cripple. The nature of the information provided by the respondent surgeon and its adequacy in the circumstances were central to the matters considered by the Court.
Reibl, at trial, recovered damages in both battery and negligence, despite his formal consent to the surgery, on the ground that his was not an “informed consent”; he had claimed that he had not been informed of stroke and paralysis as a result of the operation. The Ontario Court of Appeal ordered a new trial on both liability and damages but ruled out battery as a possible ground of liability. Only liability was disputed before this Court. Defendant respondent sought both to hold the judgment in appeal and to vary it by dismissal. The time elapsed since the physical damage was suffered made a new trial undesirable.
Held: The appeal should be allowed.
In the absence of good reasons to order a new trial on liability alone, the proper course was either to restore the judgment at trial on either or both grounds upon which it proceeded or to relieve the defendant respondent of his ability.
The popularization of the term “informed consent” for what was, in essence, a duty of disclosure of certain risks or therapy influenced the retention of battery as a ground of liability, even where there was express consent which was not exceeded. The distinction between situations where a failure of duty of disclosure would support an action of battery and where such failure was indicative of negligence alone was, however, not only difficult to apply but also incompatible with the elements of the cause of action in battery. Such actions, in respect of surgical or other medical treatment, should be confined to those cases where surgery or treatment had been performed or given without any consent or, emergency situations aside, beyond the consent given. This standard comprehended cases where there was misrepresentation of the surgery or treatment for which consent was elicited and a different surgical procedure or treatment was carried out. In situations where it was alleged that attendant risks that should have been disclosed were not communicated to the patient and yet the surgery or other medical treatment carried out was that to which the plaintiff consented (assuming no basis of liability on the ground of negligence), the consent was not vitiated by the failure of disclosure so as to make the surgery or other treatment an unprivileged, unconsented to and intentional invasion of the patient’s bodily integrity. In spite of the temptation to say that the genuineness of consent to medical treatment depended on proper disclosure of the risks which it entailed, unless there had been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than battery.
When dealing with the standard of disclosure of risks, it would be going too far to say “the manner in which the nature and degree of risk was explained to a particular patient was better left to the judgment of the doctor in dealing with the man before him”. To allow expert medical evidence to determine what risks were material and to be disclosed and what risks were not material, would be to hand over to the medical profession the entire question of the duty of disclosure, including whether there was a breach of that duty. Expert medical evidence was, of course, relevant to findings as to risks that resided in or were a result of recommended surgery or other treatment. Testing the standard of disclosure of risks by expert medical evidence was not determinative because the patient could have expressed concerns to the doctor which the doctor would be obliged to meet in a reasonable way. What the doctor knew or should have known that the particular patient deemed relevant to a decision whether or not to undergo prescribed treatment went equally to his duty of disclosure as did the material risks recognized as a matter of required medical knowledge. The materiality of non-disclosure of certain risks to an informed decision was a matter for the trier of fact—a matter on which there would be probably medical evidence but also other evidence from the patient or other member of his family.
On the issue of causation, the Court considered objectively how far the balance in the risks of surgery or no surgery was in favour of undergoing surgery. The failure of proper disclosure pro and con and any special considerations affecting the particular patient became very material. Merely because medical evidence established the reasonableness of a recommended operation did 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 risk of surgery or no surgery were balanced would reduce the force, on objective appraisal, of the surgeon’s recommendation. In deciding what decision a reasonable person in the patient’s position would have made, the patient’s particular position should be considered objectively and not subjectively.
Here, a reasonable person in the plaintiffs position would, on the balance of probabilities, have opted against the surgery rather than undergoing it at the particular time.
Hopp v. Lepp, [1980] 2 S.C.R. 192; Kelly v. Hazlett (1976), 15 OR. (2d) 290; Schloendorff v. Society of New York Hospital (1914), 211 N.Y. 125, 105 N.E. 92, considered.
APPEAL from a judgment of the Court of Appeal for Ontario[1], ordering a new trial on both liability and damages. Appeal allowed.
D.W. Goudie, Q.C., for the plaintiff, appellant.
D.K. Laid law, Q.C., and C.L. Campbell, Q.C., for the defendant, respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—The plaintiff appellant, then 44 years of age, underwent serious surgery on March 18, 1970 for the removal of an occlusion in the left internal carotid artery, which had prevented more than a fifteen per cent flow of blood through the vessel. The operation was competently performed by the defendant respondent, a qualified neurosurgeon. However, during or immediately following the surgery the plaintiff suffered a massive stroke which left him paralyzed on the right side of his body and also impotent. The plaintiff had, of course, formally consented to the operation. Alleging, however, that his was not an “informed consent”, he sued for damages and recovered on this ground in both battery and negligence. The trial judge, Haines J., awarded a global sum of $225,000.
A majority of the Ontario Court of Appeal ordered a new trial on both liability and damages. Speaking through Brooke J.A. (Blair J.A. concurring) the Court ruled out battery as a possible ground of liability on the facts of the case. Jessup J.A., dissenting in part, would have ordered a new trial on damages alone, accepting the judgment at trial on liability. On the hearing of the appeal by this Court, leave to come here having been obtained by the plaintiff, counsel for the defendant respondent agreed to accept the award of damages and limited his contestation to liability, seeking not only to hold the judgment in appeal but a “variation” thereof by way of dismissal of the action. Although, strictly speaking, the claim for a variation should have been made the subject of a cross-appeal, counsel for the appellant took no objection and I see no reason why I should not regularize the claim for dismissal nunc pro tunc. Indeed, neither counsel wished to have a new trial, an understandable position when the physical damage suffered took place more than ten years ago. Unless, therefore, there are good reasons to support the order for a new trial on liability alone, the proper course is to determine whether to restore the judgment at trial on either or both grounds upon which it proceeded or whether the defendant should be relieved of liability.
It is now undoubted that the relationship between surgeon and patient gives rise to a duty of the surgeon to make disclosure to the patient of what I would call all material risks attending the surgery which is recommended. The scope of the duty of disclosure was considered in Hopp v. Lepp[2], at p. 210, where it was generalized as follows:
In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.
The Court in Hopp v. Lepp, supra, also pointed out that even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet if its occurrence carries serious consequences, as for example, paralysis or even death, it should be regarded as a material risk requiring disclosure.
In the present case, the risk attending the surgery or its immediate aftermath was the risk of a stroke, of paralysis and, indeed, of death. This was, without question, a material risk. At the same time, the evidence made it clear that there was also a risk of a stroke and of resulting death if surgery for the removal of the occlusion was refused by the patient. The delicacy of the surgery is beyond question, and its execution is no longer in any way faulted. (I would note here that in this Court no issue was raised as to the adequacy of post-operative care.) How specific, therefore, must the information to the patient be, in a case such as this, to enable him to make an “informed” choice between surgery and no surgery? One of the considerations weighing upon the plaintiff was the fact that he was about a year and a half away from earning a lifetime retirement pension as a Ford Motor Company employee. The trial judge noted (to use his words) that “due to this tragedy befalling him at the time it did, he was not eligible for certain extended disability benefits available under the collective agreement between the Ford Motor Company of Canada, Limited and its hourly employees of ten years’ standing”. At the time of the operation, the plaintiff had 8.4 years’ service with his employer. He stated in his evidence that if he had been properly informed of the magnitude of the risk involved in the surgery he would have elected to forego it, at least until his pension had vested and, further, he would have opted for a shorter normal life than a longer one as a cripple because of the surgery. Although elective surgery was indicated for the condition from which the plaintiff suffered, there was (as the trial judge found) no emergency in the sense that immediate surgical treatment was imperative. This brings me back to the question of the nature of the information provided by the respondent surgeon to the plaintiff and its adequacy in the circumstances. I will deal, in turn, with (1) the findings and conclusion of the trial judge on this issue; (2) whether, even on his findings, there was a basis for imposing liability for battery; (3) the assessment made by the Court of Appeal in ordering a new trial; (4) the evidence in the case, which consisted, in support of the plaintiff’s case, mainly of the testimony of the plaintiff and of two neurosurgeons, Dr. Irving Schacter and Dr. Robert Elgie, and portions of the examination for discovery of the defendant and, in support of the defendant’s case, the testimony of the defendant and of a neurosurgeon, Dr. William Lougheed, who were the only two witnesses called for the defendant; (5) the duty of disclosure and review of the findings below and (6) whether causation was established.
1. The Findings of the trial judge
The trial judge approached the question of proper disclosure of the attendant risks by first defining the scope of the duty of disclosure. He said this:
In respect of a claim in negligence, the issue of informed consent to treatment is a concomitant of the physician’s duty of care. A surgeon’s duty to exercise due skill and care in giving his patient reasonable information and advice with respect to the risks specifically attendant on a proposed operative procedure arises out of the special relationship between them. It is a particular case of the duty which is cast on professional persons in a fiduciary position called upon specifically or by implication to give information or advice to a client intending and entitled to rely on his statements to determine his course: Nocton v. Lord Ashburton, [1914] A.C. 932; Kenny v. Lockwood [1937] O.R. 142. That duty does not require warning the patient of the dangers incident to or possible in any surgical procedure, such as the dangers of anaesthesia or the risk of infection, matters which men of ordinary knowledge are presumed to appreciate. It relates to the specific risks within the surgeon’s knowledge peculiar to the contemplated treatment. The scope of this professional duty of care is defined by the evaluation of a variety of inter-related factors which bear uniquely on each case, factors such as the presence of an emergency requiring immediate treatment; the patient’s emotional and intellectual make-up, and his ability to appreciate and cope with the relevant facts; the gravity of the known risks, both in terms of their likelihood and the severity of this realization. The difficulty evident for the independent evaluation of these factors by a lay tribunal has caused the law of this jurisdiction to leave the definition of the scope of this duty in any particular case a matter essentially of medical judgment, one to be determined by the court on the basis of expert medical evidence.
The trial judge then proceeded to make his findings, as follows:
I find, on the basis of the expert evidence of Doctors Schacter and Elgie, that in the circumstances of this case, the duty of the surgeon as defined by accepted general practice in the neurosurgical community was to explain to the patient the problem presented by stenosis [that is, narrowing] in such an artery, and because of the serious possible complications to the central nervous system, to do his best to explain to the patient the specific risks inherent in arterial surgery of this kind, with sufficient attention to anatomical and statistical detail to import to the patient an understanding of the degree of risk which he faced of either dying as a result of the operation or of suffering a stroke that might leave him disabled. It was further the duty of the surgeon in these circumstances to explain to the patient the risks of continuing without surgery. The choice whether to proceed was then one which the patient would make for himself, armed, albeit, with what both experts agreed would be the surgeon’s recommendation to proceed, but aware, nevertheless, that for good reason there was an acceptable option to forego the procedure.
The duty of which I speak is not one which in the circumstances was difficult to execute. As I have indicated, the plaintiff is an intelligent man and fully capable of following a simple but sufficient explanation of the risk he was being asked to undertake. I am satisfied had Dr. Hughes said to the plaintiff calling him in and a sketch if necessary to clarify his meaning—”I propose to remove a partial plug in an artery a few inches from your brain. There is a risk that as a result a fragment of tissue may slip into your brain and if it does, you have a 4 per cent chance of dying and a further 10 per cent chance of having a stroke”, there is no question the plaintiff would flatly have refused. The plaintiff was entitled to know that risk and the defendant owed a duty to disclose it to him. I am left with no doubt, after evaluating the testimony of the plaintiff and his wife, and that of the defendant, as well as the relevant portions of the transcript of the defendant’s examination for discovery that the defendant fell short in his performance of this duty in two material respects. First, I find that although the defendant did impart to the plaintiff an understanding of the mechanics of the operation, to the extent that the plaintiff was made aware that pluggage was to be surgically removed from an artery leading to his brain, the defendant did not take sufficient care to communicate to the plaintiff the purpose of the operation, I find that as a result the plaintiff was probably left with the misunderstanding that the operation was being undertaken to alleviate his headaches and hypertension and to permit him to function effectively at his job. Further, and most importantly, I find that the defendant did not take sufficient care to convey to the plaintiff and assure that the plaintiff understood the gravity, nature and extent of risks specifically attendant on the endarterectomy, in particular the risk that as a result of the operation he could die or suffer a stroke of varying degrees of severity. The defendant’s evidence on this issue suffers from the understandable inconsistencies and vagueness that the passage of six and one-half years of time will import. What on balance, I take from his evidence however is that he informed the plaintiff that he would be better off to have the operation than not. At best, the ambiguity of his language I find was such that it would likely convey, even to a patient whose command of English was more perfect than was the plaintiff’s, the understanding that the single relevant area of concern was the relative likelihood of a healthy existence in the coming years with, as opposed to without, the surgery. I find that he did not address with the attention required of him the specific risks of an adverse result of the operation itself. The plaintiff was left with the impression that the operation carried no risks of consequence, other than those incidental to any surgical procedure. I find further, that as a result of the defendant’s breach of duty, the plaintiff gave his assent to the performance of the operation, an assent which I am convinced from the evidence he would not have given had the defendant’s aforesaid duty not been performed in the negligent manner which I have described.
For the reasons above stated, I am also of the view that the defendant is liable in battery.
2. Liability for Battery
In my opinion, these findings do not justify the imposition of liability for battery. The popularization of the term “informed consent” for what is, in essence, a duty of disclosure of certain risks of surgery or therapy appears to have had some influence in the retention of battery as a ground of liability, even in cases where there was express consent to such treatment and the surgeon or therapist did not go beyond that to which consent was given. It would be better to abandon the term when it tends to confuse battery and negligence. Haines J., the trial judge, adopted the distinction drawn by Morden J., as he then was, in Kelly v. Hazlett[3] between situations where a failure in the duty of disclosure would support an action of battery and where such a failure is indicative of negligence alone. Morden J. said this at pp. 312-13:
It appears to me that it is reasonable to look at the matter of informed consent, as far as an alleged battery is concerned, from the point of view of what information was communicated. If the basic nature and character of the operation performed is substantially that of which the plaintiff was advised, and then agreed to, then there has not been an unconsented to invasion of the person of the plaintiff, regardless of any failure to disclose any collateral risks flowing from the operation. However, such failure, if it can be shown to have resulted in damage to the patient, and was not justified by reasonable medical considerations, may properly be subject-matter for a claim based on negligence.
…
However, it has to be recognized that this test has both its practical and, perhaps, its policy frailties. In some cases it may be difficult to distinguish, and separate out, the matter of consequential or collateral risks from the basic nature and character of the operation or the procedure to be performed. This may possibly have been the case in Halushka v. University of Saskatchewan [(1965), 53 D.L.R. (2d) 436]. The more probable the risk the more it could be said to be an integral feature of the nature and character of the operation. Further, even if a risk is truly collateral, but still material, it could be said that its disclosure is so essential to an informed decision to undergo the operation that lack of such disclosure should vitiate the consent.
That judge said earlier in his reasons (at p. 310) that. “The issue of ‘informed’ consent can arise in both battery and negligence cases: with respect to the former a lack of proper information communicated by the doctor to the patient can vitiate an apparent consent while, with respect to the latter, failure to see to it that the patient is properly advised can amount, in certain circumstances, to an act of negligence”.
I find the attempted distinction not only very difficult of application but also as incompatible with the elements of the cause of action in battery. The tort is an intentional one, consisting of an unprivileged and unconsented to invasion of one’s bodily security. True enough, it has some advantages for a plaintiff over an action of negligence since it does not require proof of causation and it casts upon the defendant the burden of proving consent to what was done. Again, it does not require the adducing of medical evidence, although it seems to me that if battery is to be available for certain kinds of failure to meet the duty of disclosure there would necessarily have to be some such evidence brought before the Court as an element in determining whether there has been such a failure.
The well-known statement of Cardozo J. in Schloendorff v. Society of New York Hospital[4], at pp. 129‑30 and at p. 93 respectively, that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages” cannot be taken beyond the compass of its words to support an action of battery where there has been consent to the very surgical procedure carried out upon a patient but there has been a breach of the duty of disclosure of attendant risks. In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.
This standard would comprehend cases where there was misrepresentation of the surgery or treatment for which consent was elicited and a different surgical procedure or treatment was carried out. See, for example, Marshall v. Curry[5] (consent given to operation to cure hernia; doctor removes patient’s testicle; action in battery); Murray v. McMurchy[6] (consent given to a caesarian operation; doctor goes on and sterilizes the patient; doctor liable for trespass to the person); Mulloy v. Hop Sang[7] (doctor told to repair hand and not to amputate; performs amputation; held liable in trespass); Winn v. Alexander and the Soldiers’ Memorial Hospital[8] (consent given to caesarian; doctor goes further and sterilizes the patient); Schweizer v. Central Hospital et al.[9] (patient consented to operation on his toe; doctor operated on back instead (spinal fusion); doctor liable for trespass to the person).
In situations where the allegation is that attendant risks which should have been disclosed were not communicated to the patient and yet the surgery or other medical treatment carried out was that to which the plaintiff consented (there being no negligence basis of liability for the recommended surgery or treatment to deal with the patient’s condition), I do not understand how it can be said that the consent was vitiated by the failure of disclosure so as to make the surgery or other treatment an unprivileged, unconsented to and intentional invasion of the patient’s bodily integrity. I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery. Although such a failure relates to an informed choice of submitting to or refusing recommended and appropriate treatment, it arises as the breach of an anterior duty of due care, comparable in legal obligation to the duty of due care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent.
3. The Assessment of the Court of Appeal
Brooke J.A., speaking for the majority of the Court of Appeal, noted, quite properly, that “The duty [of disclosure] to the patient is determined by the court and the evidence of the expert witnesses, if accepted, is relevant to determining whether or not the defendant has discharged that duty. To be actionable [in negligence] the defendant’s failure in his duty of care must cause the plaintiff loss and damage”. He went on to examine the reasons of Haines J. and made the following observations upon that trial judge’s determination:
In finding that the plaintiff was left with the impression that the surgery carried no risk of consequence other than those in any surgical procedure I think it must be assumed that the learned trial judge has rejected the defendant’s explanation that the plaintiff was aware of the risk of a stroke as a risk of the surgery. Of some importance, the learned trial judge makes no specific finding of credibility and indeed does not disbelieve the defendant’s evidence that he thought the plaintiff understood the risk. However, the learned trial judge did not put his judgment simply on the failure to warn, but also on the failure to take sufficient care to discuss the degree of risk. He relied upon the evidence of doctors Elgie and Schacter and it is my respectful view that, having regard for the emphasis which the learned trial judge places upon the statistical details, he has misunderstood the real significance of the evidence of these two doctors. Doctors Schacter and Elgie appear to have taken a similar approach to the question of explaining the risks of the surgery, but the emphasis is not on statistical detail. Dr. Elgie alone made reference to statistics in discussing the manner in which he would advise his patient when seeking a consent to perform this operation and in this respect his answer was different from that of Dr. Schacter.
Brooke J.A. was highly critical of the use of unexplained statistics which appeared to be directed to the degree of risk involved in the particular surgery. This is what he said in that respect:
One need only look at the contrast in the evidence of the statistics quoted by Dr. Hughes and Dr. Elgie to demonstrate the confusion that could arise from their use. When asked in cross‑examination, Dr. Hughes’ figure as to the incidence of death because of surgery was 4%, which was equal to Dr. Elgie’s highest figure where he put the range between 2 and 4% and with respect to the incidence of stroke causing paralysis or transient weakness, Dr. Hughes put the figure at 10% which was five times Dr. Elgie’s lowest figure and almost two and one half times his highest figure. Taken cumulatively, Dr. Hughes’ figure at 14% is more than three times Dr. Elgie’s lowest estimate and almost twice his highest. They were really very different. The reason for the difference went unexplained. No one asked the doctors. And yet the trial judge referred principally in his reasons, and particularly in testing the defendant’s conduct, to the statistics recounted by Dr. Hughes, which there was no suggestion the doctor attempted to use. If the difference is based solely or partly on the personal experience of the surgeons, and there is in the evidence some reason suggested that this may be so, then perhaps the explanation lies in the nature of the cases that each has dealt with and that the chance of survivorship of those undertaken by one was less than the other. If this is so, there may have been good reason not to mention statistics to the patient, but rather to simply contrast his position if he undertakes the surgery with that of not undertaking it and urge him to proceed because of his youth and strength giving some assurance of survivorship. I do not think the evidence justifies the statement made by the learned trial judge and I would hesitate to lay down any such requirements, for in my view statistics can be very misleading. The manner in which the nature and degree of risk is explained to a particular patient is better left to the judgment of the doctor in dealing with the man before him. Its adequacy can be simply tested. I think the Ontario Court of Appeal went too far, when dealing with the standard of disclosure of risks, in saying, as it did in the passage of its reasons just quoted, that “the manner in which the nature and degree of risk is explained to a particular patient is better left to the judgment of the doctor in dealing with the man before him”. Of course, it can be tested by expert medical evidence but that too is not determinative. The patient may have expressed certain concerns to the doctor and the latter is obliged to meet them in a reasonable way. What the doctor knows or should know that the particular patient deems relevant to a decision whether to undergo prescribed treatment goes equally to his duty of disclosure as do the material risks recognized as a matter of required medical knowledge.
It is important to examine this issue in greater detail. The Ontario Court of Appeal appears to have adopted a professional medical standard, not only for determining what are the material risks that should be disclosed but also, and concurrently, for determining whether there has been a breach of the duty of disclosure. This was also the approach of the trial judge, notwithstanding that on the facts he found against the defendant. (Indeed, the trial judge seems also to have overstated the duty of disclosure. The Court of Appeal, in contrast, seems to have understated it. Generally, the failure to mention statistics should not affect the duty to inform nor be a factor in deciding whether the duty has been breached.) To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone. The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.
The materiality of non-disclosure of certain risks to an informed decision is a matter for the trier of fact, a matter on which there would, in all likelihood, be medical evidence but also other evidence, including evidence from the patient or from members of his family. It is, of course, possible that a particular patient may waive aside any question of risks and be quite prepared to submit to the surgery or treatment, whatever they be. Such a situation presents no difficulty. Again, it may be the case that a particular patient may, because of emotional factors, be unable to cope with facts relevant to recommended surgery or treatment and the doctor may, in such a case, be justified in withholding or generalizing information as to which he would otherwise be required to be more specific.
A useful summary of issues on which medical evidence in non-disclosure cases remains significant is found in a comment, “New Trends in Informed Consent?” (1975), 54 Neb. L. Rev. 66, at pp. 90-91, where, after noting that medical evidence should not control determination of the breach of the standard of care, it continued, as follows (referring to Canterbury v. Spence, infra):
Even Canterbury specifically notes that expert testimony will still be required, in all but the clearest instances, to establish (1) risks inherent in a given procedure or treatment, (2) the consequences of leaving the ailment untreated, (3) alternative means of treatment and their risks, and (4) the cause of the injury suffered by the plaintiff-patient. Finally, if the defendant-physician claims a privilege, expert testimony is needed to show the existence of (1) an emergency which would eliminate the need for obtaining consent, and (2) the impact upon the patient of risk disclosure where a full disclosure appears medically unwarranted. The learned Justice of Appeal also was of the view that the reference to statistics, and the positing of a requirement that the defendant should have put before the patient what he said in evidence as to the percentage likelihood of a stroke or death, resulted in an improper finding on causation. I quote a portion of his reasons in this connection, as follows:
The statistics would have to be explained to the patient and then discussed in relation to his position if he did not have the surgery. Would the view of the learned trial judge have been any different if resort had been made to Dr. Elgie’s statistics or to the statistics quoted by both doctors? Does this not simply reveal the confusion that probably would result to a patient who is attempting to reconcile the doctor’s recommendation to proceed with an unexplained gross figure of 14% risk?
I think the learned trial judge has failed to appreciate the approach taken by both of Dr. Elgie and Dr. Schacter, which was to present a comprehensive statement of the position to the patient.
Brooke J.A. referred to portions of the evidence given by Dr. Elgie and by Dr. Schacter and summarized it in these given words:
As I understand the evidence of Dr. Elgie it is an explanation to the patient that he runs a greater risk of death or a stroke in the present year if he does not have the surgery than he would run if he were to have it and that the risk would continue in that way. Dr. Schacter’s evidence is to the same effect. It is my opinion the evidence did not justify the use of the proposition by which the trial judge decided the plaintiffs case and determined whether the defendant’s conduct was negligence, and if so, if the negligence caused the plaintiffs loss and damage.
Judgment in this type of case is difficult because it is really based on consideration of hindsight.
He proceeded then to consider a line of American cases on causation, including the leading case of Canterbury v. Spence[10], certiorari denied[11], Cobbs v. Grant[12] and Barnette v. Potenza[13] and commented on them as follows: In actions for negligence our courts have adopted a subjective test. Referring to the above cases I must not be taken as adopting or suggesting the adoption of the doctrine of informed consent as it has developed in some of the courts of the United States of America. The references made at this point are for the value of the discussion on the question of proof. The experience above reported should not be ignored as those courts were driven to this conclusion because justice could not be done between the parties other than by such an objective approach. It is never too late in the day to change. I think a safe practice here is to test the plaintiff’s case objectively before proceeding to consider it subjectively.
Was the defendant’s negligence the cause of the plaintiff’s loss? If he is able to show that he has suffered loss as a result of the recommended treatment and he (or at least a reasonable man in his position) would not have consented if the required disclosure was made, damages may be awarded. In my respectful view, the learned trial judge really did not deal with this issue properly.
It was on this ground that he ordered a new trial.
If Canadian case law has so far proceeded on a subjective test of causation, it is in courts other than this one that such an approach has been taken: see Koehler et al. v. Cook[14], at p. 767; Kelly v. Hazlett, supra, at p. 320. The matter is res integra here. An alternative to the subjective test is an objective one, that is, what would a reasonable person in the patient’s position have done if there had been proper disclosure of attendant risks. The case for the objective standard has been tersely put in the following passage from a comment in (1973), 48 N.Y.U.L. Rev. 548, at p. 550, entitled “Informed Consent—A Proposed Standard for Medical Disclosure”:
Since proximate causation exists only if disclosure would have resul