Recent informed consent decisions in medical malpractice

This article was provided by Neinstein Personal Injury Lawyers.

Informed consent is a distinct cause of action from negligence. Two recent decisions out of Alberta and Manitoba have looked at the issue of informed consent in medical malpractice cases. These decisions provide insight into how the courts assess credibility and medical records when determining whether a physician obtained informed consent from a patient.

Khaleel v. Indar, 2023 ABKB 547

In Khaleel v. Indar, 2023 ABKB 547, the plaintiff underwent an open hernia repair procedure performed by the defendant general surgeon. Following the surgery, the plaintiff experienced chronic pain and was diagnosed with an atrophic testicle, which he later required surgery to remove.

The plaintiff sued the defendant, alleging, among other things, that the defendant failed to advise him of all the risks associated with the open hernia repair, including chronic pain and testicular atrophy, and failed to advise him of the alternative of laparoscopic surgery. The plaintiff explained that these specific risks would have been significant to him because he worked in a labour-intensive job, and he intended to have children.

The defendant testified that, although he did not recall the specific discussion, his usual practice was to always advise patients undergoing hernia repair surgeries of six material risks, including chronic pain and testicular atrophy, which he acknowledged were two of the most significant risks of the surgery.

The trial judge had concerns with both the reliability and credibility of the plaintiff, as his memory of certain events was poor and there were various inconsistencies in his evidence at trial. As a result, the trial judge was not prepared to accept the plaintiff’s evidence unless it was supported by the records.

In the defendant’s consultation note and the consent form, the defendant documented discussing the pros and cons of surgery with the plaintiff and listed four specific risks that were discussed – chronic pain and testicular atrophy were not included in the list. At trial, the defendant had no reasonable explanation for why he did not include chronic pain and testicular atrophy in the list.

The trial judge held that it was not logical that the defendant would take the time to document four specific risks, both in his consultation note and the consent form, but not document the two remaining, more serious risks. The trial judge concluded that the defendant did not discuss the risks of chronic pain and testicular atrophy with the plaintiff. Therefore, the defendant did not meet his duty to obtain informed consent for the hernia repair surgery.

Perdue v. MacDonald, 2022 MBKB 204

In Perdue v. MacDonald, 2022 MBKB 204, the plaintiff alleged that the defendant physician failed to advise her that he would be using an allograft (graft tissue from a deceased donor) in her ACL reconstruction prior to the day of surgery. The plaintiff asserted that the allograft ultimately caused her to suffer a serious infection necessitating additional surgery. The plaintiff claimed that she would not have consented to the use of an allograft (as opposed to an autograft) had she been informed before the day of her surgery.

The plaintiff testified that she did not recall all the details of her discussions with the defendant physician leading up to her knee surgery, but she was unequivocal that he never mentioned an allograft until she questioned where the graft would be harvested from on the morning of her surgery. The plaintiff claimed that by the time she was informed, she felt pressured to consent and thought the defendant would postpone her surgery if she did not agree to the use of the allograft.

By contrast, the defendant physician had limited memory of his specific discussions with the plaintiff. However, he testified that his usual practice was to always inform patients of the intended use of an allograft before he ordered the allograft for the procedure (which was done prior to the day of the surgery) and to discuss the pros and cons of an allograft versus and autograft for ACL reconstructions. The defendant acknowledged that he did not prepare a visit note in relation to his consultation with the plaintiff and there was no documented evidence of his consent discussion with the plaintiff.

The trial judge noted that the plaintiff presented as intelligent and thoughtful and did not appear to intend to mislead the Court. However, the judge determined that the plaintiff’s recollection was tainted by the unfortunate complications that followed her surgery and therefore lacked credibility. In particular, the trial judge took issue with the fact that the plaintiff admitted to having a poor recollection of her discussion with the defendant but testified that she was unequivocal that an allograft was never discussed. The plaintiff gave evidence that she researched ACL reconstructions on the internet before her consultation with the defendant. Her understanding was that the defendant would reconstruct her ACL with an autograft taken from her hamstring or her other knee. When asked if she came across information on allografts during her research, the plaintiff testified that she did not pay attention to any references to allografts. The trial judge concluded that the plaintiff’s evidence on this point lacked credibility.

The trial judge concluded that, although there were some weaknesses in the defendant’s evidence, it was more likely than not that he did discuss the use of the allograft with the plaintiff prior to the day of her knee surgery. The trial judge noted that, even if the defendant did not discuss the allograft with the plaintiff in advance of the day of surgery, his discussion with her on the day of surgery met the required standard of care for informed consent.

Conclusion

These recent decisions on informed consent in medical malpractice cases demonstrate the ongoing difficulties with establishing that a physician failed to inform a patient of material information based on the patient’s recollection alone and the significant value of supportive corroborating evidence, such as medical records.