Ciarlariello et al. v. Schacter et al., (1993) 151 N.R. 133 (SCC)

• Judge: McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 30, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1993), 151 N.R. 133 (SCC);151 NR 133;62 OAC 161;[1993] CarswellOnt 803;[1993] SCJ No 46 (QL);100 DLR (4th) 609;1993 CanLII 138 (SCC);[1993] 2 SCR 119;15 CCLT (2d) 209

Ciarlariello v. Schacter (1993), 151 N.R. 133 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Vera Ciarlariello and Lena Ciarlariello, Administrators of the Estate of Giovanna Ciarlariello, deceased (appellant) v. Marilyn Anne Keller, M.D., and Robert A. Greco, M.D. (respondents)

(22343)

Indexed As: Ciarlariello et al. v. Schacter et al.

Supreme Court of Canada

La Forest, Sopinka, Cory,

McLachlin and Iacobucci, JJ.

April 22, 1993.

Summary:

A patient was rendered a quadriplegic following a cerebral angiogram. The patient sued several doctors and two hospitals. In a decision reported at (1987), 7 A.C.W.S.(3d) 51, the trial judge, inter alia, dismissed the patient's claims in negligence and battery against Doctors Keller and Greco. The patient died after trial. Her estate appealed respecting the dismissal. Doctors Keller and Greco cross-appealed respecting damages.

The Ontario Court of Appeal, in a decision reported at 44 O.A.C. 385; 76 D.L.R.(4th) 449; 5 C.C.L.T.(2d) 221, dismissed the appeal. The court did not find it necessary to deal with the cross appeal. The estate appealed.

The Supreme Court of Canada dismissed the appeal.

Medicine - Topic 3045

Relation with patient - Consent to treat­ment - Informed consent - What consti­tutes - During a second angiogram, the patient began hyperventilating and asked that the procedure be stopped - The pro­cedure resumed; the patient emerged a quadriplegic - The Supreme Court of Canada affirmed dismissal of claims of battery and negligence against the doctors, where the patient's consent to resumption of the procedure was informed consent - For renewal of consent, the doctors were required to disclose material risks, if any, that were involved in continuing and that would alter the patient's assessment of whether to continue.

Medicine - Topic 3046

Relation with patient - Consent to treat­ment - Informed consent - Burden of proof - The Supreme Court of Canada stated that, in determining whether there was a valid consent to treatment, the doc­tor has the burden of establishing that the patient comprehended the explanation and instructions given - See paragraphs 54 to 56.

Medicine - Topic 3048

Relation with patient - Consent to treat­ment - Negligence - Duty of treating doctor to inform patient - [See Medicine - Topic 3045 ].

Medicine - Topic 3052

Relation with patient - Consent to treat­ment - Standard of disclosure by doctor - The Supreme Court of Canada stated that the appropriate standard of disclosure is what the patient would want to know concerning the risks in undergoing or foregoing surgery or treatment - An ob­jective approach should be taken in deter­mining whether a risk is material and therefore should be explained - Where consent has been withdrawn during a procedure, the appropriate standard of disclosure for consent to renewal or con­tinuation is also an objective assessment of what the patient would want to know about significant risks of continuation or material changes affecting the assessment of whether to continue - See paragraphs 34 to 51.

Medicine - Topic 4241

Liability of practitioners - Negligence - General - The Supreme Court of Canada stated that when a patient withdraws con­sent during a procedure "the procedure must be stopped unless to do so would seriously endanger the patient ... [T]he patient may still consent to the renewal ... That consent must also be informed ... [T]he patient must be advised of any material change in the risks which had arisen and would be involved in continuing the process ... In addition, the patient must be informed of any material change in the circumstances which could alter his or her assessment of the costs or benefits of continuing the procedure" - See paragraph 61.

Medicine - Topic 4253

Liability of practitioners - Negligence - Tests - Angiogram - [See Medicine - Topic 3045 ].

Cases Noticed:

Reibl v. Hughes, [1980], 2 S.C.R. 880; 39 N.R. 361; 114 D.L.R.(3d) 1; 14 C.C.L.T. 1, consd. [para. 24].

Mitchell v. MacDonald (N.A.) (1987), 80 A.R. 16; 40 C.C.L.T. 266 (Q.B.), consd. [para. 38].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), consd. [para. 40].

Nightingale v. Kaplovitch, [1989] O.J. No. 585 (Ont. H.C.), consd. [para. 41].

Schanczl v. Singh, [1988] 2 W.W.R. 465 (Alta. Q.B.), refd to. [para. 55].

Counsel:

E.A. Cherniak, Q.C., and Patricia D. Jack­son, for the appellants;

F. Paul Morrison, Kevin C. McLoughlin and Tracey Pearce, for the respondents.

Solicitors of Record:

Tory, Tory, DesLauriers & Binnington, Toronto, Ontario, for the appellants;

McCarthy, Tétrault, Toronto, Ontario, for the respondents.

This appeal was heard on November 30, 1992, before La Forest, Sopinka, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada. On April 22, 1993, Cory, J., delivered the following judgment in both official languages for the court.