Philosophy 2080 Lecture Notes - Public Services And Procurement Canada, Classic Case, Obiter Dictum

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Week 5: More Special Issues
Now here is an odd case. The court must consider whether a doctor is required
to inform the patient of the nature and the risks of a surgical procedure as part of
his treatment of the patient. It is not a case about a negligent surgical procedure.
You will note that the trial court gave judgment for the plaintiff both in negligence
and in battery. You will recall battery is an intentional tort, defined as the
intentional application of force on the person of another, without that person’s
The Court of Appeal disagreed with battery as a cause of action in these
circumstances, I disagree with that but who am I?
Another difficult problem for the court is that the plaintiff is suing on the basis that
he would not have had the surgery if he really knew the risks. Hindsight is 20 / 20
they say, every plaintiff would make this claim, once they knew the operation
didn’t turn out they way they had hoped. So look for the way the court
recognizes, articulates, and ultimately deals with this problem.
It is also worth noting what the Supreme Court has to say about expert evidence.
An expert is supposed to give her evidence in hypothetical terms, it is the only
“opinion evidence” that is allowed in a trial, and the expert is not to “decide” the
facts. The expert provides an opinion that will inform and educate the “trier of
fact”, be it judge or jury, and the trier of fact will decide the facts. Letting the
expert give evidence about the particular takes away the job of the trier of fact,
and this is against our legal tradition.
Plaintiff had an operation, removal of occlusion of carotid artery - during or right
after operation, π had massive stroke, paralysis over right side of body, impotent
π formally consented, but alleged did not know risks of surgery
Held: at trial, for the π, def did not properly explain risks, duty to disclose, π
would have refused surgery with knowledge of the risk,
liability in negligence for negligently informing
liability in battery - intentional application of force without (informed)
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@ 1st appeal:
new trial ordered on liability and damages
restricted to negligence only, dismissed battery (reject vitiated consent as
non consent)
both sides appealed - π appealed whole case; def accepted damages
award, appealed decision re: new trial, asked for dismissal on issue of
nunc pro tunc - should have been a cross appeal, accept claims now as if
it had been done when required
refer to Hopp v Lepp, doctor’s duty to disclose to patient, 1-97
must answer questions, and without being asked, disclose nature of
operation; gravity of operation; material risks, special or unusual ones;
includes serious risks even if remote
Trial J’s findings:
informed consent is part of Dr’s duty, full information
duty to warn of particular risks of that procedure
factors: emergency requiring immediate treatment; patient’s emotional,
intellectual ability to understand; gravity of known risks; likelihood of risk
and severity
juries find determination complicated, rely (a bit too much?) on expert
found duty to advise patient of risk of death and / or stroke etc
patient would then be able to make proper decision
if patient knew - would have refused op
didn’t #1, explain nature and purpose; #2, explain potential risks
π mainly concerned with quality of life, also wanted to work to pension
Battery Trial j accepts battery, CA does not
rejects lack of “informed consent” as supporting action for battery
says that without fraud or misrepresentation, lack of disclosure is framed in
Court of Appeal:
rejected use of expert evidence, expert witness’s’ statistical data was not
consistent, a lack of presentation of statistics wasn’t negligent - they would
only confuse the guy
** SCC - suggestion that expert medical evidence will determine what
should be disclosed is rejected - important evidence, but leave it to the trier
of fact, - also judged by what def knows is important / material to the
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need evidence of patient, family, …
some patients are unstable, can’t be told,
subjective test: did the patient have the operation because the Dr
negligently failed to disclose the risk - i.e. can patient prove he would not
have had operation if he knew the risk
objective - would reasonable person, properly advised of the risk,
have refused the operation
1-104, 1st full para
problems here: if objectively operation is justified, Dr and expert evidence
is only relevant evidence - if subjective, patient always says wouldn’t have
had operation
look objectively in balance of risk - in favour of surgery or no surgery,
taking special circumstances of patient into account
π wanted his pension,
patient’s particular concerns must be reasonably based, ** this means you
can’t choose not have surgery for some dumb reason
def did not tell anything beyond better with operation (op) than without it
8 to 10 of 60 to 70 of def’s own patients had died from same operation
π thought op to cure headaches, def didn’t tell him otherwise
no specific reference to risk of stroke
other factors: no immediate need for op; immediate risk more from surgery than
lack of; π didn’t speak English all that well; nothing to show π unable to cope
with disclosure;
ratio: 1-108 - under heading of causation, would reasonable person in π’s
circumstances have foregone surgery? - yes
- this is a strange case to analyze, the doctor is negligent if he fails to tell the
patient sufficient information, (he has a duty to explain things), and this lack of
disclosure caused the plaintiff, on a reasonable person (in the plaintiff’s position)
standard, to have an operation he would have otherwise refused to undergo
causation: the lack of disclosure caused the plaintiff to undergo surgery
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