The temporal element of informed consent.

• Author: Black, Vaughan
• Position: United Kingdom

1. Introduction

   The rules and standards of tort liability are typically stated at a high level of generality, one which makes no mention of specific activities or given groups of plaintiffs or defendants. The task of bringing those abstract rules to bear on the diverse behaviour to which tort law applies thus involves courts applying broad propositions to a wide range of particular occurrences. From time to time, however, legislatures have been persuaded to pass statutes singling out certain activities or persons for special treatment in tort actions. For instance, in Canada we have statutes which give beneficial treatment in some tort actions to certain favoured classes of defendants. These include farmers, (1) nuclear facilities, (2) anglers, (3) and government itself. (4) In addition, we have statutes which treat some defendants--tobacco manufacturers (5) and dog owners, (6) for example--more harshly than the general rules of tort would otherwise treat them.

   The articulation of special tort rules for particular classes of defendants is not limited to statutes. From time to time courts have been prepared to depart from the generality that typically characterizes the standards of private law. They have promulgated special liability rules for particular groups of defendants. In Canada, two such groups have most frequently come in for such treatment: the government and doctors. It is not difficult to understand why there might be distinctive tort rules for government defendants. The state's mission, obligations, structure and limitations set it apart from private actors. However, it is less easy to understand why the general rules of tort law--rules which apply to the other professions and to other private actors of a non-professional nature--should require modification before they can be applied to doctors. Nevertheless those rules have been modified for physician defendants. Moreover they have been altered in a manner that benefits defendant doctors. In ter Neuzen v. Korn (7) the Supreme Court of Canada held that, in the context of medical negligence, a defendant medical doctor who complied with standard practice could not, except in exceptional circumstances, be held to have fallen below the applicable standard of care. In Reibl v. Hughes (8) the Supreme Court articulated the distinction between negligence and battery so as to ensure that physicians who failed to gain informed consent to a procedure might be liable for the former cause of action, but not normally for the latter, more morally invidious one. Reibl also gave doctors, but no one else, the benefit of a special causation test. This distinctive rule for doctors was upheld by the Supreme Court in the 1997 case of Arndt v. Smith. (9) In Laferriere v. Lawson (10) the Supreme Court rejected a claim that the doctrine of loss of chance, which applies to certain actions in negligence, should apply to that claim for medical malpractice. And in its recent decision in Cottrelle v. Gerrard (11) the Ontario Court of Appeal confirmed the rule that loss of chance should not apply to medical malpractice claims.

   Recently, in Afshar v. Chester, (12) the House of Lords decided a case which articulated yet another special tort rule for doctors. The question considered in Afshar has been before the High Court of Australia (13) but has not yet been subjected to much consideration by Canadian courts. It easily could, however, and the goal of this note is to explain and critique Afshar with an eye to that decision's potential implications for Canadian law. Addressing that last matter may not be easy because, in contrast to the practice of the Supreme Court of Canada, which has viewed doctors as a "peculiarly vulnerable" class of defendants (14) deserving of special protection, the House of Lords decision in Afshar sets out an exceptional rule that treats defendant doctors less favourably than other, non-medical defendants would be treated. The ruling of the majority of the House of Lords in Afshar holds the defendant doctor liable in circumstances where an analogous non-medical doctor defendant would have been exonerated.

2. The Facts and Holding in Afshar

   The facts were straightforward. Ms Chester was referred to a neurosurgeon, Dr. Afshar, due to recurring back pain. Dr. Afshar recommended surgery to remove three intervertebral disks. The surgery was performed three days later. Although Dr. Afshar was not negligent in his conduct of the operation, one of the risks of lumbar surgery, disturbance to the cauda equina nerve root, unfortunately materialized in a major fashion. Ms Chester suffered motor and sensory impairment transiently in her right leg and on a more permanent basis on her left side. The trial was adjourned prior to an exploration of the extent of disability to enable resolution of the issue of liability.

   Ms Chester claimed that Dr. Afshar had failed to warn her of the risk of nerve damage and the sequelae of paralysis. In response to her query regarding risks of surgery, she testified, Dr. Afshar responded that "he had not crippled anybody yet." (15) Her evidence was that she was reluctant to undergo surgery (confirmed in the note from her referring physician) but that Dr. Afshar had made it all sound so simple that she had agreed to the operation. Further, she testified that, had she been advised of the risks, she would have sought at least two additional opinions, and would have made a number of further enquiries.

   Note that Ms Chester did not testify that she would have refused to undergo the surgery. Had she done so, the action would have proceeded as a simple question of uninformed consent, and the issue of factual causation would have been a matter of assessing the credibility of her claim. Rather, her claim was that she would not have submitted to the surgery a mere three days after her initial consultation with Dr. Afshar. This rendered the action questionable on the issue of causation in that she may well have consented to similar surgery performed by the same surgeon at a later date, presumably with the identical small risk that manifested in her case.

   The parties agreed that failure to warn of the possibility of nerve damage would amount to a breach of the duty to inform. Dr. Afshar testified that he had given that warning. However, the trial judge accepted Ms Chester's testimony as to the failure of Dr. Afshar to identify the risks of surgery, in particular the possibility of paralysis. He also found that, had she known, Ms Chester would have sought a second and possibly a third opinion prior to consenting to surgery rather than proceeding when she did. In his view that was sufficient to establish the causal link.

   Dr. Afshar appealed on the issue of causation. In dismissing the appeal (16) the Court of Appeal noted the interesting problem posed by the case. If the plaintiff would have had the same operation even if warned, then the failure to warn did not cause the harm and the plaintiff's case should fail. If the plaintiff would not have had the operation at all had she been warned, then the failure to make proper disclosure did cause the harm and the plaintiff should win. But how should the matter be approached in a case like this, where the plaintiff had failed to show that, had she been properly warned, she would not at some later date have undergone a comparable operation with roughly similar risks?

   In the unanimous view of the Court of Appeal, the purpose of requiring doctors to give appropriate disclosure was "to enable the patient to exercise her right to choose whether or not to have the particular operation to which she is asked to give her consent." (17) Thus it followed that causation would be made out even if the patient would have agreed to the same operation at a later time. This followed since the risk of the nerve damage the plaintiff suffered was peculiar to the operation, not to the patient. Thus, even though she would have run the same risk of nerve damage on the hypothetical later operation that she ran on the operation she in fact had, on the balance of probabilities that harm would not have eventuated on...