Hospital staff fails to obtain informed consent, resulting in severe consequences for the patient.
Background
The primary plaintiff underwent gamma knife and shunt insertion surgeries in 2010 and 2011 to treat an arteriovenous malformation in his brain. In the years that followed, he made a full recovery and was treated conservatively, showing minimal change on follow-up MRIs.
After reviewing the case in 2014, two of the defendants suggested an embolization surgery to perhaps remove the shunt and a subsequent procedure to resect the arteriovenous malformation. The plaintiff, however, was not informed that, if he consented to move further, he would probably need many embolizations.
The plaintiff had three embolizations: first in August 2014, second in December 2014, and third in June 2015. The plaintiff experienced acute massive cerebral bleeding after the third embolization, necessitating an urgent craniotomy to drain the blood and remove the arteriovenous malformation. He developed a severe left hemiplegia, was completely dependent on others for all care, and could only write and gesture as a means of communication.
He filed a medical malpractice lawsuit against the defendants based on a lack of informed consent, along with his wife and two daughters. The key question in the case concerned whether the plaintiff gave his informed permission for the embolization surgery, which was primarily reliant on the hazards that the Defendants had advised him of.
The modified objective standard established by the Supreme Court of Canada in Reibl v. Hughes, 1980 CanLII 23 (SCC), and improved in the instances that followed, must be satisfied by the plaintiffs in any informed consent case for them to prevail. In particular, the plaintiffs must demonstrate
(a) The patient was ignorant before the procedure in question due to the doctor’s failure to adequately communicate the procedure’s nature or significant dangers;
(b) had the patient been adequately informed, they would not have consented to the procedure in question; and
(c) if fully informed of the relevant hazards, a reasonable person in the patient’s situation would not have undergone the surgery in question.
Findings
According to Justice Ferguson, the plaintiffs satisfied the requirement and the Defendants were responsible for the agreed-upon amount of the Plaintiffs’ damages. Justice Ferguson found that the defendant physicians misled the plaintiff on the extent, usefulness, risk, and necessity of medical intervention.
The cumulative risk of having multiple embolizations was not disclosed to the plaintiff, the statistical risks he was given were false, and the cumulative risk of having multiple embolizations was significantly higher than what had been disclosed to the plaintiff, according to Justice Ferguson.
In addition, Justice Ferguson determined that no patient with the Plaintiff’s clinical history and appearance had received several embolizations at the hospital of the Defendants in the prior 13.5 years. According to Justice Ferguson, this was another item that should have been disclosed to the plaintiff but wasn’t.
Finally, Justice Ferguson concluded that neither the Plaintiff nor a reasonable person in his situation would have chosen to undergo the suggested medical interventions had appropriate disclosure been made. In fact, the plaintiff would have delayed making the choice until after his retirement if he had received the proper disclosure. By doing so, he would have been able to keep working and save money for his family’s maintenance.
This situation serves as a crucial reminder that full and correct disclosure of all risks associated with a procedure is necessary for informed consent. When a technique is likely to lead to more procedures (like the sequence of embolizations carried out here), disclosure must also include the cumulative risks of those additional procedures.
Read the case summary here.
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From CanLII