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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 32 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

risks (some of them)

therapeutic alternatives and their risks

The doctor must also answer any specific questions the patient asks.

Some risks do not need to be disclosed because it is taken for granted that the patient knows what they are.

Limitation of the role of patients:

treatment without consent:

for children: Consent is usually given by a child’s parents, or sometimes by the court.

In Quebec, children can consent on their own behalf at age 14.

Children have a limited capacity to refuse treatment: “Martyrdom is reserved for adults.”

in emergency cases, when the patient is unconscious. (a.13 al.2). There are two conditions:

1. One must be pressed by time.

2 .One must be unable to obtain consent in time.

uninformed consent:

fault:

Civil law uses the “reasonable doctor” test (the normal test of reasonableness):

This is also called the “professional disclosure standard.” It depends on:

1. the probability of the realization of the risk

2. the seriousness of the potential injury

Parenteau v. Drolet, [1994] R.J.Q. 689 (C.A.). (CB1p481)

Jurisdiction

Quebec

Facts

Dr. Parenteau performed a cosmetic operation on Mme. Drolet’s eyelids. Complications from the surgery caused Mme. Drolet to lose her vision in one eye. Mme. Drolet was never informed of this risk. The risk was small (1 case in 2500), but Dr. Parenteau was aware of it.  

Issues

Was Dr. Parenteau obliged to inform his patients of this risk?

Holding

Yes.

Ratio

Although the risk was small, the damages were severe. “The duty to warn of risk varies inversely with its rarity, but directly with severity…” The fact that the surgery was cosmetic also appears to have affected the decision.

There was also the issue of follow-up and whether the injury could have been prevented if Dr. Parenteau had required Drolet to stay longer at the clinic, but that’s another issue.

Common law uses the “full disclosure standard” (articulated by Linden J. in White v. Turner as the “reasonable patient standard”). It depends on:

What kind of material risk would the patient have wanted disclosed?

“…material risks are significant risks that pose a real threat to the patient’s life, health or comfort. In considering whether a risk is material or immaterial, one must balance the severity of the potential result and the likelihood of its occurring.” (Linden J.)

“Material risks” are roughly equivalent to the professional disclosure standard in civil law.

What kind of special or unusual risk would the patient have wanted disclosed?

21/11/02

causation in medical liability:

Canadian common law uses a “modified objective test”: Would a reasonable person in the patient’s position have consented if informed?

It is “modified” because it considers the patient’s age and marital status as well as reasonable beliefs, fears and desires.

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