In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.In that case, the patient was unsuccessful in his claim in negligence for the surgical technique. He also asserted a claim for the failure of the surgeon to provide an informed consent. The concept of such a duty was affirmed by the SCC, but the patient was unsuccessful in establishing a breach of the duty. The duty was further clarified by the SCC in Reibl v Hughes. In that case, the patient suffered a stroke following the operation which was a known possible risk. He became partially paralyzed and could not return to his work. As a result, he could not qualify for an employee pension benefit which would not have vested for another 18 months. Here the patient was not informed of the risk of stroke despite asking about its possibility but rather was told that without the surgery he would more likely suffer a stroke. The SCC found this to be a breach of the duty holding that:
...even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet where its occurrence carries serious consequences, as for example paralysis or even death, it should be regarded as a material risk requiring disclosure.
What constitutes a special, material or unusual risk will depend on the particular facts of the case. A mere possibility will be included as a material risk if the occurrence of that mere possibility is serious, for example, if it can result in paralysis or death; and, Material risks include those risks which the doctor knows, or ought to know, that a reasonable person in the patient's position would consider in deciding whether to undergo a procedure or treatment.
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”?