In Ontario, the law allows a plaintiff to sue a physician if they conduct a medical procedure without the patient’s informed consent, resulting in injury—even if the injury was not due to negligence.
Context of Elective Procedures and Treatments
For example, injuries often arise in the context of elective procedures or treatments, such as surgeries after conservative treatment fails, or chiropractic treatments. Even if the surgery or treatment was not conducted negligently, the plaintiff will have a case if they can prove it was conducted without informed consent.
Challenges in Proving Informed Consent
Proving such a case is not as easy as it sounds. A plaintiff cannot use hindsight to make their case. Many people claim they would not have proceeded with a surgery or treatment if they knew it would hurt them. However, this is not the legal test. The situation is much more complicated. Additionally, the plaintiff cannot use the “I didn’t read it, I just signed it” excuse regarding written waivers or consents.
Legal Requirements for Physicians
The law requires that before an elective treatment, a physician must provide adequate information to the patient without being asked and advise the patient of alternative treatment options, including no treatment at all, along with the comparative risks between the options. Adequate information means explaining the nature of the treatment and any material, special, or unusual risks. Whether adequate information and alternatives are properly explained to a patient depends on the specific case’s factual circumstances and can include statistical evidence on risk or success rates where appropriate.
The Burden of Proof on the Plaintiff
The plaintiff must show causation, meaning: a) If they had been given adequate information and alternatives, they would not have gone through with the treatment. b) A reasonable person in the plaintiff’s shoes would not have undergone the treatment (the ‘reasonable person’ test).
This can be difficult to prove because people do not always carefully measure their options and often want to treat whatever condition they are seeking help for, regardless of the potential consequences.
Importance of Documentation
A physician will not often have a specific memory of the patient interaction giving rise to an informed consent claim because they see many patients. Therefore, it is very important to review the documentation (notes, records, written consents, etc.) created by the doctor to determine what was explained to the patient. If the notes are lacking, it can strengthen the plaintiff’s case since the plaintiff will generally have a better memory of the discussion.
Contact Us for Legal Assistance
If you have been injured during a medical procedure or treatment and would like to discuss your potential options, please contact us.
