Failure to disclose risk of bile leak in gallbladder removal not malpractice: court

The British Columbia Supreme Court has ruled that failure to disclose the risk of a bile leak in gallbladder removal surgery does not constitute a breach of the standard of care expected of a general surgeon.

In Quinn v. Chuah, 2022 BCSC 157, Quinn went to Surrey Memorial Hospital in Surrey, B.C., for gallbladder removal surgery, which was performed by Chuah. Two days later, Quinn went to Peace Arch Hospital, which informed her that she had developed a bile leak. Quinn refused to undergo surgery several times because it was too painful and the procedure was later performed in another hospital under deep sedation.

Quinn filed multiple actions against Chuah, including negligence and medical malpractice. She alleged that she was not informed of the risk of a bile leak before the surgery and had she been informed, she would not have gone through with it. Ultimately, the court ruled that the main issues were whether Chuah had properly advised Quinn of the material risks of surgery and whether he properly obtained her informed consent.

To sustain the negligence claim, Quinn had to prove, on a balance of probabilities, that Chuah owed her a duty of care and she suffered damage from a breach of the standard of care, said the court. As to the medical malpractice claim, the court must consider the standard of an ordinary average specialist in the same field under similar circumstances, as proven by expert witness.

After examining the evidence, the court dismissed Quinn’s action.

The trial court found that Chuah failed to advise Quinn of the risk of a bile leak before surgery, but this wasn’t a breach of the standard of care owed by Chuah.

The court ruled that, based on expert evidence, a general surgeon is not expected to inform a patient of all types of injury that can occur, only “material” or special risks. Further, both expert witnesses agreed that a bile leak is a minor injury and the failure to advise a patient of this risk did not fall below the standard of care expected of a general surgeon, said the court.

Addressing issue of obtaining informed consent, the court ruled that two elements must be present: “(1) that subjectively the plaintiff would not have agreed to the surgery if the risks had been disclosed; and (2) that a reasonable person in the plaintiff’s position would not have agreed to the surgery if the risks had been disclosed.”

The court found that Quinn not only trusted doctors – including Chuah – and did whatever they recommended, her extensive history of surgeries, including cosmetic surgery, revealed that she was not averse to it. This defeated her allegation that she would not have proceeded with the surgery had she known the risks, said the court in dismissing the action.