eCaseNote 2005 No. 05

Doctors Disclose! Informed Consent and “Material Risks”

Christie v. Jason (2004), M.B.Q.B. 207, 188 Man. R. (2d) 86, [2005] 5 W.W.R. 163

Our firm recently reviewed the case noted above and believes a brief summary would be of interest to any of our clients in the health care delivery field. The primary legal issue in this case was whether or not a surgeon had breached their duty of care in failing to disclose to a patient the material risks associated with an operation. There was also a question of whether or not the doctor had initially arrived at the correct diagnosis.

The plaintiff, Mr. Christie, was an 80-year-old man was referred to the defendant, Dr. Jason, a specialist in urology in Manitoba. Dr. Jason performed a physical examination and diagnosed Mr. Christie with a slightly enlarged prostate. Surgery was discussed and a date for a prostate operation was set. Mr. Christie testified that Dr. Jason had said that he frequently performed these types of procedures, and that there was, “nothing to it.” Mr. Christie was told to pick up a pamphlet about the procedure at the reception desk.

There was no discussion of the risks associated with the surgery, which included a 20 to 30 percent chance of incontinence, as well as a possibility of erectile dysfunction. These risks were disclosed in the pamphlet provided by Dr. Jason’s office, which Mr. Christie testified he took home and read on two or three occasions. Mr. Christie did not contact Dr. Jason to discuss the risks, nor to ask any further questions. Mr. Christie signed a consent form prior to the operation stating that he had had all relevant risks and complications explained to him by Dr. Jason. Following the operation, Mr. Christie suffered from erectile dysfunction, became entirely incontinent and required the use of adult diapers.

At trial Dr. Jason was found not to have been negligent in giving a diagnosis, but was found to have been negligent in not disclosing all the materials risks of the procedure to the patient prior to the operation. Mr. Christie was awarded $25,000.00 in general damages. This decision has not been appealed.

The Court stated that physicians have a duty of care to conduct themselves in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of specialists, a doctor’s behaviour must be assessed in light of the conduct of other ordinary, competent specialists in that particular field. Regarding diagnosis, the Court stated that a doctor will not be found liable if the diagnosis given corresponds to one recognized by medical science at the time, even in the face of competing theories. However, with respect to the duty to disclose, the Court reiterated that a physician must disclose to a patient all material risks associated with a procedure. A risk is material if a reasonable person would think it was significant to a decision of whether or not to undergo a procedure. Without being made aware of all the material risks, a patient cannot give informed consent. Based on Dr. Jason’s diagnosis of a slightly enlarged, non-cancerous prostate, the Court found that a reasonable person in Mr. Christie’s circumstances would not have agreed to the elective surgery if they had been properly advised of the 20 to 30 percent risk of incontinence.

The Court concluded by stating that, generally, a surgeon should answer any specific questions posed by a patient concerning the risks involved and should, without being questioned, disclose to a patient the nature of an operation, its gravity, any material risks and any other special or unusual risks related to the performance of the operation.

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