Introduction
It is expected that prior to any elective treatment, a physician owes a duty to the patient to provide adequate disclosure of risks.[1] This duty has been expanded over the years to include all advising doctors, even if they are not involved in the treatment directly. It has also been expanded to include “disclosing the nature of the proposed treatment and any material, special, or unusual risks of the treatment."[2] The Ontario Court of Appeal recently applied these duties of care to multi-step elective treatment plans in the case of Denman v. Radovanovic (hereinafter “Denman”).
The Facts
The plaintiff, Michael Denman had sustained a flow-related aneurysm and an anterior ventricle malformation (“AVM”) following what had either been a seizure or a stroke.[3] His initial treatment at Saint Michael’s Hospital had resolved the aneurysm.[4] A subsequent procedure of Gamma Knife stereotactic radiosurgery had not resolved the AVM. [5] The AVM remained in stable condition. [6]
This prompted a case conference with the defendant physicians Dr. Radovanovic (neurosurgeon), Dr. ter Brugge (diagnostic radiologist) and Dr. Pereira (neuroradiologist and neurosurgeon who performed the surgery thereafter). [7]
During this case conference, a multi-step treatment plan was decided upon to effect a cure for the AVM.[8] This plan would have only benefited Mr. Denman if the embolization procedures fully resolved the AVM.[9] The first two procedures resulted in only partial embolization but had not caused further damage.[10]
Mr. Denman agreed to proceed with a third embolization attempt. Following this third procedure, there were complications and emergency surgery was required.[11] Mr. Denman was left paralyzed on his left side, fully reliant on others for all his care, and limited to communicating through writing and gestures.[12] He had been the primary breadwinner in his household before this final embolization attempt.
The Trial Decision
Mr. Denman, his wife and his two daughters brought a claim in negligence against the three physicians responsible for the multi-step treatment plan.[13] The plaintiffs alleged, inter alia, that the defendants failed to obtain informed consent from Mr. Denman for the embolization procedure that left him paralyzed and dependent on others.[14]
The trial judge, Justice Jane Ferguson, found in the plaintiffs’ favour. She held that all three physicians failed to obtain informed consent. Had the appropriate disclosure of risks been made, “a reasonable patient in his circumstances would [not] have elected to proceed with any of the medical interventions recommended”.[15] Finally, Justice Ferguson accepted the plaintiff would have deferred this decision until after his retirement if properly informed, making an income loss claim recoverable.[16]
The Appeal
The three physicians appealed the above trial decision. The Court ruled in the plaintiff’s favour and dismissed the appeal. In doing so, the Court reviewed the case in four sections:
- the law of informed consent and sufficiency of reasons;
- alleged deficiencies in the reasons relating to informed consent;
- evidentiary issues; and
- cost considerations.[17]
Analysis
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The law of informed consent and sufficiency of reasons
Justice Rouleau, writing for the Court, distinguished failing to make adequate disclosure to a patient with having no consent at all. Battery results where there is no consent at all. Failing to advise of all reasonable risks leads to a claim in negligence even when consent if provided.[18]
Informed consent requires “disclosing the nature of the proposed treatment and any material, special or unusual risks of the treatment” [19] Where there are options, the “patient is to be informed of the relative and comparative risks and benefits between the options.” [20] The Court affirmed the importance of a patient being equipped with all the information necessary to make an informed choice between alternative courses of treatment. [21]
The plaintiff had the onus to prove two elements:
- That they would not have undergone the procedure had they been adequately informed, and
- That a reasonable person in the plaintiff’s position would not have undergone the procedure if given adequate information[22]
It is sufficient that the plaintiff prove he would have declined the treatment at that time only to have accepted it later. [23]
On the question of the sufficiency of reasons, the Court took the opportunity to restate their conclusions in the recent case of Levac v. James. [24] The trier of fact’s reasons are adequate if they permit meaningful appellate review. If they do, then an argument that the reasons are inadequate fails, despite any shortcomings. [25]
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Alleged deficiencies in the application of the law of informed consent
A. There were flaws in the reasons that were not fatal to the conclusion
Justice Rouleau acknowledged that the trial judge’s reasons were flawed, in that their structure could have been improved and they borrowed large portions from the respondent’s written trial submissions.[26] However, the Court held that these, and other deficiencies mentioned throughout the judgement, did not prevent meaningful appellate review.
The plaintiff’s circumstances were considered. There was no requirement for specific calculation of the level of risk. It was the cumulative risk of the cure desired by the plaintiff that should have been conveyed. The plaintiff’s expert, Dr. Findlay, whose opinion was not disputed, evaluated the risk of a permanent neurological deficit of the physician’s plan at 30-50%. Compared to the risk of spontaneous bleed (accepted to be 40-60%, not all of which would result in such severe damages), the medical intervention was “too high risk” in the unchallenged opinion of the plaintiff’s expert. [27]
Coupled with the admission of the defendant Dr. Pereira, that the risk of a serious adverse outcome of no treatment was only 1% per year, the trial judge reasonably found information of the actual risk was not provided. The trial judge’s conclusion that neither the plaintiff nor a reasonable person would have elected to proceed if properly informed was adequately explained and fully supported by the record. [28]
B. The duty for informed consent expanded to all physicians, not just the treating surgeon.
The Court went on to agree that all three physicians should be found liable, not just the physician who performed the procedure. [29] The duty to disclose was not limited to the physician carrying out the procedure. Rather in the pre-Reibl era, the physician who did the procedure would have the duty for informed consent based on the theory of battery. [30] However, later cases, most specifically Ferguson v. Hamilton Civic Hospitals[31] and following, held a physician who advised to accept a procedure did not avoid a duty for informed consent.[32] This is supported by the Health Care Consent Act, 1996 [33] that allows one health practitioners may propose the plan of treatment on behalf of an entire team and obtain refusal or consent. [34]
The Court agreed with the trial judge that two physicians who did not perform the procedure, but who had been part of the case conference absent the performing surgeon, still had a duty to advise of the “cumulative upfront risk or range of upfront risk associated with what was known to be a multi-step elective course of treatment.” [35] This necessarily implicated the two physicians who did not perform the operation themselves.
C. Causation still needs to be unbroken.
Once there is deficient informing of risk, there must still be causation. Even if there is consent obtained from the plaintiff with a lack of informed risk, there is still a claim in negligence. [36] The chain of causation could have been broken by providing informed consent between the second unsuccessful procedure and the third that caused his injury. [37] However, in this case, the trial judge correctly held that informed consent was never obtained before ethe significant third procedure. As such, there was causation as well as breach of duty of care. [38]
The Court found that Dr. ter Brugge and Dr. Radovanovic had provided inadequate disclosure that had been lacking, misleading, and inaccurate.[39] As such, causation had been satisfied with respect to both physicians. Although Mr. Denman suffered injuries following the third embolization procedure, neither doctor had provided Mr. Denman with accurate information as to the relevant risks prior to that third procedure.[40] As such, causation was unbroken.
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Evidentiary issues
Several evidentiary issues were raised by the appellants and were universally dismissed by the Court of the Appeal.
The Court confirmed the trial judge’s decision to exclude Dr. Redekop, a vascular neurosurgeon as well as an interventional neurologist, from testifying due to bias.[41] The trial judge correctly oriented herself towards the standard expressed by the Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co.[42] as it related to her gate-keeping function for expert testimony – that an expert would only be prevented from testifying if they were “unable or unwilling to discharge the duty to provide a fair and non-partisan opinion”.[43]
The Court further found that the trial judge was well within her means to consider other case law that was relevant to the legal test in White Burgess, namely the factors listed in Wise. v. Abbott Laboratories, Ltd.[44] In doing so, the trial judge did not limit herself to those factors but, also, thoroughly considered the expert’s cross-examination, which revealed that, in his own admission, he would provide opinions only for his colleagues and not for plaintiffs.[45]
The Court also disposed of the appellants’ arguments regarding hearsay in relation to Mrs. Denman’s testimony by acknowledging that the trial judge had been alive to the concerns in this case, that the trial judge had to accommodate for the fact that Mr. Denman was unable to testify, and that the trial judge’s conclusion had been supported by ample evidence.[46]
The Court also rejected the appellants’ argument that the trial judge had not ruled on their objections against the respondents’ expert, Dr. Findlay.[47] In fact, the trial judge had qualified Dr. Findlay as an expert in neurology with the ability to provide an expert opinion on informed consent issues with regards to AVMs on the second day of trial.[48] Moreover, the appellants submissions that a deferral of rulings or objections had resulted in prejudice to them was undermined by their lack of insistence upon rulings prior to calling their case.[49]
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Costs
The appellants submitted that, in making the costs award, the trial judge had relied on extraneous and irrelevant factors.[50] They further submitted that the award was not justified as the appellants had not behaved in a reprehensible, scandalous, or outrageous manner.[51]
However, the Court of Appeal found the costs award as having been proportionate to “the complexity of the proceeding and importance of the issues raised, the $8.5 million in damages agreed upon between parties, and the work required to achieve the trial result in the case”.[52] Furthermore, the amount had been less than what the respondents, who had made and bettered their offer to settle, would have been awarded under rule 49 of the Rules of Civil Procedure.[53]
Takeaway
Most importantly, this decision clarifies the law as it pertains to informed consent. The Court of Appeal has confirmed negligence in informed consent cases can co-exist with consent and separate from battery.
It can also extend to physicians not performing the procedure and relies on an objective standard of whether the plaintiff or any reasonable person would have agreed to the procedure if the proper information had been provided.
In the event of a treatment plan that consists of multiple procedures, this duty would encompass the cumulative risks of those procedures, though causation can be broken by proper informed consent before the procedure that results in damages.
[5] Ibid at paras. 16-18.
[7] Ibid at paras. 13-15.
[10] Ibid at paras. 29-30.
[12] Ibid at paras. 9, 37.
[18] Ibid at para. 43 citing Reibl v. Hughes, 1980 CanLII 23 (SCC).
[19] Ibid at para. 45 citing Hollis v. Dow Corning Corp, 1995 CanLII 55(SCC).
[21] Ibid at para 46 citing Van Dyke v. Grey Bruce Regional Health Centre (2005), 2005 CanLII 18841(ONCA).
[22] Ibid at paras. Para 47 citing Watson v. Dr. Shawn Soon 2018 ONSC 3809.
[23] Ibid at paras. 48 citing Reibl v. Hughes.
[25] Ibid at paras. 49 citing Levac v. James 2023 ONCA 73.
[33]S.O. 1996 c. 2. Sched A
[40] Ibid at paras. 114, 119.
[41] Ibid at para. 121, 124.
[43] Denman, supra note 1 at para. 125.
[46] Ibid at paras. 133-135.
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