Before your doctor performs any medical procedure on you he or she is supposed to get your permission. The process the doctor is supposed to go through is called informed consent.
Informed Consent: What does it mean?
The Supreme Court of Canada released an important decision for medical malpractice plaintiffs today.
Summary
In Ediger v. Johnston, the plaintiff “C” suffered from brain damage caused during her birth. C now lives with spastic quadriplegia and cerebral palsy. She is tube-fed, confined to a wheel chair and is completely dependent on others for all of her daily needs. She has a significantly reduced life expectancy of 38 years.
What is “Informed Consent”?
In the medical context, informed consent is the principle that a patient can give proper permission (‘consent”) to treatment only after being informed of the risks and implications of the treatment.
The law recognizes that you can only give true consent to receive medical treatment if you are provided with all the information necessary to make a decision about the proposed treatment. It is not enough for your doctor to simply ask if he or she has permission to perform a medical procedure.
As a medical malpractice lawyer I am often faced with explaining the difference between proof of negligence and proof of harm. Clients find it difficult to understand how a doctor may be found to be negligent; but still not be responsible for the patients injury or death.
Fowlow v. Gupta
A perfect example is the case of Fowlow v. Gupta which was recently decided by the Ontario Supreme Court.
I read an interesting decision out of Alberta recently, Gilberds v. Sobey that deals with informed consent to medical treatment and whether statistical information should be given to patients to help them determine if they will undergo treatment.
The case is interesting (at least to those of us doing medical malpractice litigation) because it also touches on the issues of what medical malpractice claimants need to prove to win their claims and the standard of care in medical malpractice claims.
Justice Ross pointed out the importance of statistical evidence at paragraph 81 of her decision:
I agree with Ferrier J. that effective communication of treatment risks requires some information on the probability of a particular result: Matuzich v. Lieberman. The degree of probability of a risk is obviously relevant to reasonable patients considering whether they want to undergo treatment; indeed the degree of probability is one of the factors that qualifies a risk as material.
I go into more detail about the facts of the decision and it’s importance to medical malpractice claims on my Atlantic Canada Personal Injury Lawyer Blog.
The British Columbia Court of Appeal released its reasons last week in the case of Ediger v. Johnston.
The Facts
Cassidy Ediger suffered an acute and severe hypoxia-ischemic encephalopathy (HIE) about 20 minutes before her birth. Her injury was caused by a compression of her umbilical cord which cut off oxygen from the placenta to her brain. The asphyxia caused a deceleration in her fetal heart rate which lasted until Cassidy was delivered by emergency caesarean section.
Persistent Problems
Between 1994 and 2000, Ms. Klein Tatner consulted several doctors to determine the cause of a variety of neurological symptoms. specialists to try to determine the cause of various symptoms she had. On May 15, 2000, she was diagnosed with tethered cord syndrome, a rare congenital condition.
On May 26, 2000 Dr. Mohr performed surgery on the plaintiff and some of the risks associated with the surgery materialized.
Children Can Make Medical Decisions
A majority of the Supreme Court of Canada has ruled that children under the age of 16 who are capable of “mature, independent” judgment can make life or death decisions about their own medical treatment.
In A.C. v. Manitoba (Director of Child and Family Services) the court was asked to decide whether the Canadian Charter of Rights and Freedoms’ guarantee of liberty, equality and religious freedom requires medical care providers to respect the decisions of children under the age of 16 to refuse medical treatment.
Almost 100,000 Medical Mistakes Each Year in Canada
The Canadian Medical Association has determined that over 87,000 patients in Canada suffer an adverse event (medical error or mistake) each year.
The same study determined that more than 24,000 people die each year due to medical errors.
Why Did You Write The Book?
I get asked that a lot. There’s a ton of work that goes into writing a book about medical malpractice claims. Most books about the topic are written by lawyers, for lawyers, and they are pretty dry reading.
I wanted to write a book that the average person could pick up and read and come away better educated and informed about the medical malpractice claims process and what is involved in filing a medical malpractice claim.
