Originally published July 2014
The concept of informed consent is well entrenched in Canadian jurisprudence. The legal test for determining the adequacy of a consent discussion is "what a reasonable patient would want to know." When patients allege they have been treated without having provided informed consent, physicians may be at risk for a civil action claiming negligence or battery, or both. (Under Québec's civil law and in the context of informed consent, "a violation of the integrity of the person" aligns with the common law concept of battery.) What follows is an example of medical care that overstepped the agreed upon treatment plan.
Case example: Court rules consent not inferred
A 32-year-old woman is referred to a gynecologist for the investigation of her pelvic pain and menorrhagia. Both she and her husband are anxious to have children. Her initial ultrasound shows a right ovarian cyst. A second ultrasound, 2 months later, reveals a large, right complex ovarian mass with internal echoes consistent with an endometrioma and a small, left ovarian cyst.
The physician recommends a laparoscopic cystectomy of the right ovary. The patient consents to a "laparoscopy, right ovarian cystectomy, peritoneal washing and possible left ovarian cystectomy." As is her usual practice, the gynecologist discusses the risks as "anaesthesia, infection, bleeding, damage to bowel/bladder/ureters/ovary, possible oophorectomy." All these possible complications are hand written by the surgeon on the standardized consent form. The form also contains the standard wording: "I consent to the physician performing any additional treatments or procedures that are immediately necessary." The patient signs the consent and the surgery is booked. The patient states that she informs the surgeon that all efforts must be made to preserve her fertility.
At the time of surgery the surgeon notes extensive endometriosis with numerous adhesions and a "frozen" pelvis. Due to heavy bleeding from the right ovary, the laparoscopy is converted to a laparotomy. A right salpingo-oophorectomy is performed with some difficulty. Moderate bleeding recurs after the surgeon lyses adhesions that are posterior to the uterus and adjacent to the left ovary. A figure-of-eight stitch is placed in the posterior wall of the uterus and the left cornua is partially oversewn. The surgeon is concerned that the patient is at high risk for an ectopic pregnancy due to both the endometriosis and anticipated surgical scarring. She, therefore, places two Filshie clips on the left fallopian tube.
Patient launches legal action
The patient is extremely upset when informed that her only fallopian tube has been clipped as a precautionary measure. A year later, the surgeon receives a statement of claim alleging both negligence and battery.1 The matter proceeds to trial, during which the judge makes this comment:
"In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent."2
At trial the plaintiffs abandon the claim of negligence but proceed on the premise that the surgeon is liable in battery for applying the Filshie clips. They contend the surgeon failed to obtain either express (a verbal or written directive) or implied consent for placing the clips. Counsel for the defendant physician argues that in signing the document the patient had provided inferred consent to additional procedures (the Filshie clips) that were immediately necessary.
The judge finds in favour of the patient plaintiff. In the judgment the judge observes: "battery is an intentional tort3 consisting in the unconsented to invasion of the individual's bodily security which, in a medical context, is surgery or treatment performed that is different from that for which the consent was given." He also states that given the circumstances of the case, consent could not be inferred as the patient had not consented to a procedure that could compromise her fertility. In the absence of an emergency, physicians are legally responsible for the consequences of procedures performed without consent even when they have acted in what, in their opinion, is the best interest of the patient.
Given that there was no emergency situation during the surgery that mandated immediate placement of the clips, a more prudent course of action would have been to complete the scheduled surgery and obtain express consent from the patient at a later date after a fulsome discussion of the risks and benefits.
As a result, the physician is found liable in battery. An award is paid to the plaintiff by the CMPA, on behalf of the member-physician.
Physicians should consider the following points when engaging in the consent discussion.
- As part of the consent discussion for a surgical procedure, it is neither possible nor expected that a physician anticipates, discusses, and documents all possible complications. Risks that occur frequently and those that are very serious, such as death or permanent disability should be included in the discussion. A patient's special circumstances might require discussion of potential but normally uncommon risks of the investigation or treatment, when typically these might not be seen as material.
- The patient should be informed about available alternative treatments and their risks. Patients should know there are other accepted alternatives and why the recommended therapy has been chosen. The patient should be informed about the consequences of leaving the medical condition untreated.
- It is both appropriate and prudent to inform the patient of potential consequences of the procedure or of its complications especially for patients of childbearing age. Asking open-ended questions such as, "Is there anything you want me to know about what is important to you," allows patients to voice their concerns in a non-judgmental environment.
- Closing the discussion with, "Is there anything else you want to ask me?" provides the patient with an opportunity to clarify the discussion. In addition, it gives physicians insight into patients' retention of information and their analysis of options for treatment.
- Documenting the consent discussion in the medical record and noting the questions asked by a patient is important and confirms that the patient sought to fully understand the information being presented.
- A consent form itself is not the actual consent. The dialogue with the patient is the key element of the consent process. Courts understand that emergent situations often require an emergent intervention. However, if the additional intervention is not of an urgent or elective nature (e.g. incidental appendectomy), then physicians should obtain express consent. Performing a procedure without consent may constitute battery in provinces or territories under common law or may constitute an act that interferes with the integrity of the person under Québec's civil law.
- Actions relating to informed consent may proceed either as a claim in negligence or battery (neither of which is a criminal charge).
- When patients allege informed consent was not obtained because the physician failed to provide them with the material4 risks of a procedure or treatment, then a claim of negligence is more likely.
For more information see the section on informed consent in the CMPA Good Practices Guide at cmpa-acpm.ca/gpg.
1 Battery is a tort in common law. The Supreme Court of Canada has restricted such claims to non-emergency situations where the physician has carried out surgery or treatment on the plaintiff without consent, or has gone well beyond or departed from the procedure for which consent was given. In Québec law and in the context of informed consent, "violation à l'intégrité de la personne" would generally align with the common law tort of battery.
2 Reibl v. Hughes (1980) 2 S.C.R 880 p.7
3 In common law, a tort is a civil wrong for which a legal remedy exists. The wrong relates to harm or losses occurring to a person or their property because of deliberate action or carelessness of another and forms the basis of the claim by the plaintiff in the majority of civil legal claims. The concept of "tort" does not apply to Québec.
4 The courts generally consider material risks as being those that a reasonable person, in the same circumstances, would want to know before consenting to an investigation or treatment. This would include complications that occur commonly, and also those complications that occur rarely but have significant consequences for that patient.