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Medical Malpractice Decision on Difference Between Battery and Informed Consent

Victor Lewin - Thursday, April 10, 2014

Doctors, nurses, and other medical professionals owe their patients a duty of care. They have a legal obligation to treat a patient in a manner that meets the standard of care. Where the doctor or nurse fails to meet the standard, he or she is negligent. Where that negligence causes a patient medical harm, the doctor or nurse will be liable for damages.

Doctors have an obligation to obtain consent from a patient before treatment is commenced. Where consent is not obtained, the doctor may be liable to the patient. While this seems like a straight-forward concept, in practical situations it is more complex.

A recent appeal decision, released a couple months ago, highlights this complexity. The decision helps to clarify the difference between medical battery and medical negligence.

The medical malpractice case revolved around treatment the patient received from his surgeon. The doctor performed a hysterectomy on the patient. During the course of the operation, the respondent's ureter was transected. The damage to the ureter was not diagnosed for three weeks.

At trial, the judge found that the doctor had met the standard of care in the performance of the operation. In other words, the doctor was not negligent in performing the surgery that damaged the ureter. However the judge found that the doctor operated on the patient without her informed consent and was negligent in not diagnosing the damage to the ureter sooner. The doctor appealed. The Court of Appeal found that the trial judge misunderstood the difference between medical battery versus medical negligence and ordered a new trial.

The Court of Appeal clarified that in the context of medical treatment, battery arises when there is no consent at all. An example would be when the wrong operation or procedure was conducted. When there is an allegation of a deficiency in the explanation of risks, the issue is that of informed consent. It quoted from the Supreme Court of Canada in Reibl v. Hughes, [1980] 2 S.C.R. 880:

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.
. . . . .

...in my view, 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.

The Court found that the judge erred by discussing the issue of informed consent as "battery", when the facts made it clear that the issue was a failure to disclose the risks of surgery. Because the issue related to lack of disclosure of risks (versus conducting the entire surgery without any consent), the proper issue is therefore informed consent.

There is a two-part test for informed consent. The first is subjective; the second is objective. The Court of Appeal described the analysis as follows:

The subjective test is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the individual. The objective test is based on what a reasonable person in the respondent's position would have done. Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent.

The subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning. A patient could be inclined to say that he or she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action had been known. As stated in Reibl v. Hughes, at p. 898:

[T]o apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.

The objective test is based on reasonableness, as stated in Reibl v. Hughes, at p. 900:

In short, although account must be taken of a patient's particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.

Here, the trial judge dealt only partially with the subjective test and not at all with the objective test.

To meet the subjective test, the respondent must establish that the material risks or treatment alternatives were not adequately disclosed and that had they been disclosed, consent would not have been given. The evidence here was that there was a 2% risk of damage to the ureter. The appellant testified that his standard risk conversation includes a discussion of possible injuries to the surrounding organs, including the ureter, as well as bleeding and infection. The respondent's evidence was that she did not recall a discussion of risks beyond that of bleeding and infection. On this basis, the trial judge held as follows:

I believe her when she says that the defendant informed her of the general risks, but not the risk of damage to her ureters.

This decision is important in that it helps clarify the important issue of consent in the medical context. A doctor commits battery where he or she performs a surgery without ANY consent. A doctor is negligent where he or she performs a surgery without first discussing all material risks, the disclosure of which would result a reasonable person in the patient's circumstances to decline the treatment.

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