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Informed Consent in Medical Malpractice

What is informed consent? In negligence, informed consent is essentially a duty of disclosure. A doctor meeting the right standard can still be found negligent if they don’t properly disclose the risks of treatment to the patient.

Negligence versus Battery

Lack of patient consent engages both the tort of negligence and the tort of battery. There is however a distinction between informed consent in negligence versus battery . Explained by Chief Justice Laskin:

…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 …

… 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….(Reibl v. Hughes, [1980] 2 S.C.R.880 at 891-892)

Therefore, a physician commits battery only if the patient’s consent was never obtained or was exceeded. As a result, in most medical malpractice cases battery will not apply and the lack of informed consent is the allegation.

Disclosure and Explanation

Here are a few keys points established by the Supreme Court of Canada you need to know about informed consent:

  • The doctor must disclose the nature of the treatment, its gravity, and any associated risks that would want to be known by a reasonable patient.
  • The physician must inform the patient about the frequency or statistical chance of a material or special risk arising.
  • The physician is required to explain the nature and severity of the injury that could ensue.

The courts have taken a broad approach in describing risks that carry serious consequences. Therefore, the duty to disclose includes even a remote risk in cases where the consequences are so serious that a patient would consider it to be significant.

No Procedure if Informed

The inquiry does not end when the evidence in the medical malpractice proves no consent was given. The claimant must also prove they would not have undergone the procedure even if advised of the risks. This is the most difficult legal test to meet in many cases.

A patient’s consent is usually obtained at the beginning of the relationship. Patient signs a consent to the procedure, which may include notice that a possible outcome is death. It may be therefore difficult to prove they were not informed if a patient signs a consent, .

Always seek legal advice before confronting a physician about a lack of disclosure. A lack of informed consent is a legal test and often requires a review of documents and expert opinion.

Starting Medical Malpractice Basics

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