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Informed Consent - Surgery

Victor Lewin - Saturday, April 13, 2013

The Ontario Superior Court of Justice had the opportunity to review the law as it relates to informed consent for elective medical surgeries in Tiglao v. Sleightholm, 2012 ONSC 3092.

The plaintiff was a 46 year old woman born in the Philippines and who spoke very little English. Her primary language was Tagalog and it was obvious to the Court that living circumstances had made it such that she had never assimilated into the English-speaking culture in Canada. The Court found that the plaintiff had no fluency in even basic English. Prior to the surgery, the plaintiff complained of having small breasts that were asymmetrical and "drooping". She also had a three inch scar on her lower abdomen as a result of a previous C-section. These imperfections bothered the plaintiff who decided to undergo a breast augmentation and "tummy tuck" to be performed by the defendant.

The evidence presented at trial indicated that the plaintiff and her English speaking husband attended the defendant's office for a consult during which the defendant was present for 20 minutes. The consult was primarily with the office manager and was entirely in English. The defendant gave evidence that during the 20 minutes of the consult for which he was present, he spent 5 minutes taking measurements and in the remaining 15 minutes explained all the major aspects of the surgeries, including the procedures themselves and the associated risks:

The evidence of the plaintiffs and the evidence of Dr. Sleightholm is conflicting as to what was discussed on March 6, 2007, the first consultation date. Dr. Sleightholm testified that in 15 minutes he explained all the risks of the two surgeries and all the different methods of doing implants to the plaintiffs. He testified that he also explained about the size and location of the incision to remove Ms. Tiglao's C-section scar. The doctor testified that he also explained, in the same 15 minutes - hematomas, seromas, skin necrosis, possible asymmetry of the breasts, malplacement of the implants, infection and incomplete C-section scar removal. Both of the plaintiffs adamantly deny that they were informed of any such risks by Dr. Sleightholm. In my opinion, Susan Tiglao would never have understood explanations of these medical, technical words, legal words and/or these medical terms, even if the doctor did tell her all of this information in the 15 minutes he spent with her and her husband (after he took her measurements). This 15 minute period was the only consult between Dr. Sleightholm and the plaintiffs prior to Ms. Tiglao's pre-op appointment on the day of surgery (July 18, 2007).(para 20)

The majority of the initial consult was spent with the office manager who was in charge of interviewing patients and getting their medical histories. Additionally, the evidence revealed that all office consults and visits were conducted in English, despite the fact that the clinic employed a Tagalog speaking nurse. The evidence was clear that the plaintiff did not understand the nature of the consents she signed and did not appreciate their importance. The Court also accepted the plaintiff's evidence that she was not informed of the risks of the surgeries and expected that any such risks would have been communicated to her.

The Court discussed the law regarding informed consent stating generally at paragraph 22:

As the legal principles governing informed consent are well settled, they can be stated as they were in Revell v. Heartwell, 2010 ONCA 353 (CanLII), at paragraphs 42 and 43, as follows:
Doctors must disclose all material risks to patients before proceeding with treatment. A material risk is one that a reasonable person in the patient's position would want to know about before deciding whether to proceed with the proposed treatment. Risks that are rare will be material if the consequences of those risks are serious. See Van Dyke v. Grey Bruce Regional Health Centre,2005 CanLII 18841 (ON CA), (2005), 255 D.L.R. (4th) 397 (Ont. C.A.) at para. 63, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 335, [2005] 3 S.R.C. viii.

In Matuzich v. Lieberman, [2002] O.J. No. 2811 (Ont. S.C.J.) at para. 53, Ferrier J. provides a helpful guide to approaching the question of whether there has been adequate disclosure of the material risks attendant on a procedure or treatment. He said that disclosure involves three major elements:

1. An explanation of the procedure and the injury that may occur;
2. An explanation of the frequency or likelihood of the injury (risk) materializing; and,
3. An explanation of the consequences of the injury (risk), should it occur.

Obviously this task is more involved when there is a language barrier between the patient and the medical professional. At paragraph 32 the Court quoted fromMalinowski v. Schneider, 2010 ABQB 734:

...When faced with a patient whose personal characteristics might suggest there is a language barrier to his or her understanding of a consent form, the medical practitioner ought to take steps to ensure that language limitations have not prevented or limited the patient's understanding of the form that the patient has been asked to read and sign. A person of limited education, or one with a limited knowledge of the English language, or one who is under the effects of medication or some other factor which might limit concentration or capacity, may have difficulty understanding concepts such as "spinal joint dysfunction", "spinal mobility", "contra-indicated", or other words or expressions used in the form. When faced with such a patient, medical practitioners should ensure that the patient understands the meaning of the words and expressions as well as the overall meaning of the document.

The Court noted that there is a higher burden on the medical professional to disclose the nature of the procedure and the risks involved where the patient has a limited understanding of the English language, or has difficulty in comprehension by reason of infirmity or disability.(Byciuk v. Hollingsworth, 2004 ABQB 370, para. 33). In conclusion, the Court stated as follows at paragraphs 45 and 46:

It is clear from the review of these cases that the patient's illiteracy and/or ability to comprehend and/or fluency in English are significant factors to be considered when the doctor explains to the patient the risks related to the surgery to be performed. There is a 'special duty' placed on the doctor in these circumstances to be certain that his/her patient understands the risks and the alternatives available to the patient.
Moreover, a doctor cannot relegate his obligation to ensure informed consent is given to an employee or a spouse of the patient. Dr. Sleightholm was not able to rely unduly on Mr. Fraser to explain the risks secondhand. The doctor must satisfy himself/herself that he/she is proceeding with the informed consent of his own patient.

The Court found that the defendant made no efforts to ensure the plaintiff was fully informed of the procedures, given the plaintiff's lack of understanding of the English language. The Court went on to note that the question becomes whether a reasonable person in the patient's position would have decided to proceed with the operation even if she had been advised of these risks?" (Munir v. Jackson, 148 A.C.W.S. (3d) 151). The Court accepted the plaintiff's evidence that, had she known of the risks, particularly the chance that her breasts would become more asymmetrical and the chance that she would end up with a larger scar on her abdomen, she would have never had the procedure. The court awarded damages in the amount of $90,600.

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