Medical malpractice cases are very complex.
This series of articles by BC personal injury and BC medical malpractice lawyer Paul Mitchell, Q.C., will explain the Top 7 things you need to know about medical malpractice cases, including when a medical malpractice case should be commenced, the legal and medical issues involved, and why they are so hard to win.
Find out what is involved in these difficult cases.
#4 Informed Consent in Medical Malpractice Cases
BC medical malpractice law states that a doctor has to tell you about the nature of the treatment proposed, the risks of the treatment, and other options that you may have.
You can’t legally “consent to treatment” unless the doctor gives you all this information.
When a doctor tells you of the risksof treatment, they don’t have to explain all the possible risks – just those that a “reasonable patient” would want to know before deciding about treatment. These are called “material risks”. “Material risks” are those risks that “…a reasonable patient would want to know about before making a decision regarding the treatment”.
Every patient is entitled to be advised by the treating doctor of all the “material risks” associated with any form of treatment.
This would include all risks which may be small, but which carry potentially significant or harmful consequences.
If the patient had not been made fully and properly aware of the risks, this is still not enough to find the doctor negligent.
The court will only find the doctor negligent for failing to advise of the risks, and obtaining the patient’s informed consent, if the court concludes that a “reasonable person” in the patient’s shoes would have consented to the procedure, if all the material risks had been disclosed.
The court is not concerned with whether the patient himself would have consented to the procedure if the risk had been disclosed, but rather the court determines whether a “reasonable person” in the patient’s shoes, knowing the risks, but also having the same medical and other personal “issues” that the patient had, would have consented.
As an example, suppose a patient is in debilitating and excruciating permanent pain, that may possibly be fixed by a surgical procedure. The doctor does not disclose there is a 1 in 1,000 chance of a bad outcome from the procedure. The procedure is done, and unfortunately, the bad outcome materializes.
The courts would look at what a “reasonable man” would have decided to do, in that exact situation, given the choice of permanent debilitating pain. Would the “reasonable man” decline the surgery, and elect to remain in life long pain, or would the patient voluntarily likely have assumed the 1 in 1,000 chance of a horrible outcome.
In other words, would the patient likely have elected to “ roll the dice”, and try the procedure, knowing there was a 1 in 1,000 chance of a poor outcome?
The court may well decide that a “reasonable man” would have consented to the procedure, and voluntarily taken the risk, given the circumstances.
If the court concludes the “reasonable man” would have consented to the surgery, knowing all the risks, then the case would not be successful.
If the patient voluntarily assumes the risk of a bad outcome, the patient cannot then seek compensation when the bad outcome in fact does occur.
It is very difficult to win cases on the “informed consent” issue.
When the risk is small, most patients will consent to surgery because they are anxious to have their medical problems dealt with.
They often simply do not believe that the risks will materialize. They often think “it only happens to other people”.
In summary, if a doctor doesn’t give you all the proper risk information, the failure to do so could be medical malpractice, but only if the failure caused your problems.
Even if a doctor doesn’t give you all the required risk information, the doctor will not be found liable, and you would lose your case, if a court concludes that a “reasonable person in your position” would have agreed to the treatment anyway, even if the doctor had given them all the information.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims. Paul has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.
For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
