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Do Doctors Have a Duty to Disclose Medical Mistakes?

Victor Lewin - Tuesday, August 27, 2013

In Nova Scotia, New Brunswick and PEI, medical negligence and patient safety has seen increased attention in recent years. One Canadian study shows that approximately 7.5% of patients will suffer an unintended injury during their stay in hospital. This means that approximately 185,000 Canadian patients will suffer an unintended adverse event each year. The staggering numbers raise an important question: does the patient have the right to be told if an error occurs?

The answer is a clear "yes!". It is well established that a doctor who makes an error in the course of treatment has a legal obligation to disclose this fact to the patient, if it is something which a reasonable person in the patient's position would want to know.

An excellent example of this can be found in the case of Kiley-Nikkel v. Danais. In that case a surgeon performed a mastectomy in which he relied on a pathologist's report that a tissue biopsy had tested positive for cancer. After the surgery, the biopsy was discovered to be incorrect. The surgeon was informed of this. However, neither he nor the pathologist chose to disclose this information to the patient, who ultimately had a breast mastectomy for nothing.

The patient discovered the mistake six years later. She commenced an action against the surgeon who kept this information from her. The Court found the surgeon liable, for breaching his obligation to disclose medical error. Because of his failure to inform the patient of the mistake, she endured six years of unnecessary anxiety and stress associated with her mistaken belief that she had cancer and that it could recur. The Court awarded this patient substantial damages.

In Gerula v. Flores the Court of Appeal awarded punitive damages against a doctor for his failure to inform a patient of his mistake. The doctor obtained his patient's consent for a second back operation. What the doctor failed to disclose was that the second operation was necessary only because of the mistakes he made during the first one.

The Court found that this constituted intentional misrepresentation on the part of the doctor. The doctor's failure to disclose his mistake nullified the consent her received to perform the second surgery. At law, by operating without consent, this rendered the doctor liable for battery. The patient was awarded almost $350,000 in compensation. As well, because the conduct of the doctor was found to be so outrageous, the Court of Appeal ordered him to pay $40,000 more, for punitive damages.

These decisions, and others like them, are important given the large numbers of medical errors that occur yearly in Nova Scotia, New Brunswick and PEI. From the experience of medical malpractice lawyers in regularly dealing with medical negligence cases, it remains rare for a doctor or nurse to willingly acknowledge or admit that they committed a medical error. As seen, a medical doctor's failure to accept responsibility head-on can result in findings of liability against him or her. Obviously for ethical reasons there is a responsibility to be honest. These cases highlight the legal reasons as well.

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