Health And Medical Practitioners Not Liable For Failing To Disclose Unusual Risks To Medical Treatments If A Properly Informed Person Would Have Consented Anyway

• Published date: 04 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Personal Injury
• Law Firm: Devry Smith Frank LLP
• Author: Mr David Heppenstall

Warlow v Sadeghi¹

In 2010, Elaine Warlow began experiencing a painful toothache. It was a gum infection'probably due to some impacted food. Dr. Ali Sadeghi, an oral surgeon, recommended the removal of an impacted wisdom tooth where the infection was concentrated. Ms. Warlow consented. During the surgery, Dr. Sadeghi struck a nerve. As a direct consequence, Ms. Warlow was injured and left with chronic pain.

Ms. Warlow's life was devastated. Prior to the surgery, she was in good health, athletic, maintained an active social life and was about to begin a promising new career. Following her injury, her new career was finished before it could start, her earning ability decreased, she stopped exercising, and she became socially isolated.

Ms. Warlow brought an action for damages against Dr. Sadeghi. At the Supreme Court of British Columbia, the core issue was whether Dr. Sadeghi properly informed Ms. Warlow about the risks of the procedure to remove the wisdom tooth. Although Dr. Sadeghi warned of the risk that she may experience "pins and needles" or "numbness," there was no mention of the potential for permanent nerve damage. By this omission, Ms. Warlow's consent was not informed. However, the trial judge concluded that a reasonable person in Ms. Warlow's shoes with full knowledge of that risk would have proceeded with the surgery. Consequentially, the action against Dr. Sadeghi was dismissed. The Court of Appeal for British Columbia upheld that dismissal.

The importance of health and medical practitioners providing sufficient information for patients to make informed choices about their care is paramount. But, if they fail to do so, they may not face legal liability if a properly informed person would have consented anyway.

Background

The fundamental first step of any medical treatment is to ensure that the patient consents.² Under the Ontario Health Care Consent Act, 1996, unless it is an emergency, no treatment may be performed unless consent is given by a patient who has the capacity to consent.³ Where the patient lacks capacity, their substitute decision-maker must give the consent. Consent must be voluntary, without misrepresentation, and it must relate to the nature of the proposed treatment.⁴ Consent may be either express or implied, and it may be withdrawn at any time.⁵

Consent must also be informed. For a patient to be properly informed, they must be advised of the nature and expected benefits of the treatment, but also the material risks and side...