Informed consent is critical to healthcare. It can also give rise to legal liability when doctors do not obtain informed consent before performing a procedure or medical intervention on a patient. Liability can arise if a patient suffers a bad outcome and their doctor did not obtain informed consent for the procedure.
This is what occurred in the recent decision of Justice Ferguson in Denman v Radovanovic, 2023 ONSC 1160. The Plaintiffs successfully argued that a neurosurgeon, neuroradiologist and diagnostic radiologist did not obtain informed consent for a series of embolization procedures that resulted in a brain bleed and significant permanent impairments. This case summary provides an overview of the decision.
In 2010 and 2011, the main Plaintiff underwent shunt insertion and gamma knife procedures for an arteriovenous malformation in his brain. He recovered well in the years that followed and was managed conservatively with little change on follow-up MRIs.
In 2014, two of the Defendants reviewed the case and recommended an embolization procedure to potentially remove the shunt with a possible further procedure to resect the arteriovenous malformation. However, the Plaintiff was not told that if he agreed to proceed, he would likely require multiple embolizations.
The Plaintiff underwent a first embolization in August 2014, a second embolization in December 2014 and a third embolization in June 2015. Following the third embolization, the Plaintiff developed an acute large hematoma in his brain requiring an emergency craniotomy to drain the hematoma, and resection of the arteriovenous malformation. He became densely hemiplegic on his left side, fully dependent for all care and able to communicate only by writing and gesturing.
He, along with his wife and two daughters, started a medical malpractice action against the Defendants based on a lack of informed consent. At issue in the case was whether the Plaintiff provided informed consent for the embolization procedure, which depended largely on the risks that were disclosed to him by the Defendants.
To succeed in any informed consent case, the Plaintiffs must meet the modified objective test set out by the Supreme Court of Canada in Reibl v Hughes, 1980 CanLII 23 (SCC), and refined in the cases that followed. Namely, the Plaintiffs must prove that:
(a) the physician failed to disclose the nature of the procedure or its material risks such that the patient was uninformed when undergoing the procedure in question;
(b) the patient herself would not have undergone the procedure in question had she been properly informed; and
(c) a reasonable person in the patient's position would not have undergone the procedure in question if fully apprised of the material risks.
Justice Ferguson found that the Plaintiffs met the test and that the Defendants were liable for the Plaintiffs’ damages in the agreed upon amount. Justice Ferguson found that the Plaintiff was misled by the Defendant Physicians about the scope, efficacy, risk and need for medical intervention.
According to Justice Ferguson, the Plaintiff had not been informed of the cumulative risk of undergoing multiple embolizations, the statistical risks he was provided were misleading and the cumulative risk of the multiple embolizations was significantly higher than what had been disclosed to the Plaintiff.
Justice Ferguson also found that no patient with the Plaintiff’s presentation and clinical history had undergone a series of embolizations at the Defendants’ hospital in the preceding 13.5 years. This, too, should have been disclosed to the Plaintiff but was not, according to Justice Ferguson.
Finally, Justice Ferguson found that had appropriate disclosure been made, neither the Plaintiff nor a reasonable person in his circumstances would have decided to undergo the medical interventions recommended. Indeed, Justice Ferguson found that with appropriate disclosure, the Plaintiff would have deferred the decision until after his retirement in order that he could continue to generate income and savings to support his family.
This case is an important reminder that informed consent requires complete and accurate disclosure about the risks of a procedure. Disclosure must include the cumulative risks of the multiple procedures where a procedure is likely to result in further procedures (such as the series of embolizations performed here).
If a doctor has not obtained informed consent for a procedure on you or your loved one, reach out to the lawyers at Bogoroch & Associates for a free assessment of your case.
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