We have previously written about the concept of informed consent in health law. In that post, we discussed the Supreme Court of Canada’s (SCC) decision in Reibl v. Hughes (1980) which established a hybrid test for causation in informed consent as follows:
I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material and so too are any special considerations affecting the particular patient.
Seventeen years later the SCC was again called upon to again deal with causation in informed consent in the case of Arndt v. Smith (1997). The case had to consider the test to be used when determining causation in conjunction with the concept of informed consent between a pregnant patient and her physician.
A pregnant woman contracted chickenpox. She carried the fetus to birth. Unfortunately, the child was born with congenital injuries due to the disease. She sued her physician for the failure to advise her of the risk her chickenpox posed to the child and the costs she faced to care for her child going forward. She lost at trial, was given a new trial by the Ontario Court of Appeal (ONCA) and lost on appeal to the SCC.
The SCC had recently reviewed the modified objective test in Hollis v. Dow Corning Corp. (1995). The majority there held that a subjective test was appropriate for an action against a manufacturer of breast implants when determining whether the failure to warn of the risks associated with the implants caused the harm. However, the SCC also continued to unanimously support the continuing application of the modified objective standard in negligence actions between a doctor and patient.
Returning to Reibl, the SCC made clear that it is the leading authority. The patient’s right to be informed of all potential risks associated with their healthcare decisions ensures that patients will have the benefit of a high standard of disclosure. At the same time, the modified objective test for causation ensures that our medical system will have some protection in the face of liability claims from patients influenced by unreasonable fears and beliefs, while still accommodating all the reasonable individual concerns and circumstances of plaintiffs.
Turning now to this appeal, it is appropriate to infer from the evidence that a reasonable person in the plaintiff’s position would not have decided to terminate her pregnancy in the face of the very small increased risk to the fetus posed by her exposure to the virus which causes chickenpox. In the absence of a specific and clearly expressed concern, there was nothing to indicate to the doctor that the patient had a particular concern in this regard. Further, factors such as the plaintiff’s desire for children and her suspicion of the mainstream medical profession were taken into consideration when determining what a reasonable person in the plaintiff’s position would have done if informed of the risks.
The evidence suggested that the mother would have had to seek approval from a committee to go forward with abortion since she was in her second trimester at the time she contracted chickenpox. Given the low risk posed to the fetus, it was unlikely she would have been granted the right to move forward with terminating the pregnancy.
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Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.
In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion over how proceedings before them are held.
Effective 11:59 p.m. on March 24, 2020, the Ontario government ordered the closure of “non-essential” workplaces. The list of “essential” workplaces included “health care professionals providing emergency care including dentists, optometrists and physiotherapists”.
The College of Chiropractors of Ontario (“CCO”) interprets this list as including chiropractors, and we agree.
So the question becomes – what is “emergency care”?