INFORMED CONSENT and MEDICAL MALPRACTICE
The Supreme Court of Canada’s decision in Reibl v. Hughes held that a plaintiff must be properly informed of the risks of a medical procedure before giving consent.
The plaintiff, Riebl, suffered a massive stroke following a serious but competently performed surgery. Riebl was left completely paralyzed on the right side of his body. The plaintiff consented to the surgery beforehand but was not informed by the surgeon of the chances he may be paralyzed due to the surgery. The surgeon instead stressed that the chances of paralysis would be greater if Riebl did not undergo surgery. The plaintiff argued that the consent was not informed and sued the surgeon for battery and negligence.
At trial, Reibl was awarded damages in both battery and negligence on the grounds that the formal consent was not “informed consent”. The Ontario Court of Appeal ordered a new trial for both the liability and damages, ruling out the battery as a possible ground of liability.
The Supreme Court of Canada
The appeal was allowed by the Supreme Court of Canada and held that
“since on the trial judge’s finding, that the plaintiff was under a mistaken impression, as a result of the defendant’s breach of the duty to disclose, that the surgery would relieve his continuing headaches… a reasonable person on a balance of probabilities would have opted against the surgery rather than undergoing it at that particular time.”
Whether Riebl underwent the surgery or refused to have the surgery, he was still at risk of having a stroke. The court considered the plaintiff’s testimony that he would not have forgone the surgery until his lifetime returned pension was earned in a year and a half. Instead, Riebl stated that he would have opted for a shorter, normal life, rather than a longer life as a cripple.
The question the court must answer in this case was whether a reasonable person in Riebl’s position would have declined surgery while so close to earning his pension. The court found that a reasonable person would have waited and refused to have the surgery. Thus, the appeal was allowed and the Supreme Court restored the judgment at trial.
Read the full case here.
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