Rogers v. Whitaker 

Appellant doctor appealed an award of $808,564.38 to respondent patient. Appellant doctor had operated on the right eye of respondent patient in an attempt to improve its appearance and restore some sight as respondent patient’s right eye had been sightless from a previous injury. The lower court had found that appellant doctor had operated with required skill and care but had neglected to warn the respondent patient that, as a result of surgery on her right eye, there was a chance she could develop a condition known as sympathetic opthalmia in her left eye. Respondent patient did develop sympathetic opthalmia post-surgery, which impaired the vision in her left eye, and, as the surgery had failed to restore the vision in her right eye, left her almost totally blind.

Before the primary judge evidence had been presented both from reputable medical practitioners who would not have warned the respondent patient in the circumstances of the case and from reputable medical practitioners who would have warned the respondent patient. Evidence had also established that, prior to the surgery, the respondent patient was concerned with potential complications and accidental interference during the surgery to her left eye, although she did not specifically ask whether the operation on her right eye could affect her left eye.

The Court clarified that the issue was whether the appellant doctor’s failure to advise and warn the respondent patient of the risks inherent in the operation constituted a breach of his duty to exercise the reasonable care and skill.  The Court noted the Bolam principle which sets forth that a doctor “is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medal opinion even through other doctors adopt a different practice,” however the Court then went on to discuss several shortcomings with the application of the Bolam principal to cases involving the provision of advice or information (namely, the irrelevance of a patient’s express desire for particular information).  The Court thus determined that, in the field of non-disclosure of risk and provision of information, it is for courts to adjudicate the appropriate standard of care after giving weight to the “paramount consideration that a person is entitled to make his own decisions about his life.” The Court decided to follow another approach pioneered by earlier courts, wherein the information that a careful doctor should disclose depended on a number of factors, including the patient’s desire for information and the patient’s health and temperament.

The Court also noted that “the patient’s right of self-determination” or “informed consent” were not particularly useful phrases in cases of non-disclosure as the former phrase does not help balance whether the duty to disclosed has been breached and the latter phrase is misleading as it suggests a test of the validity of the patient’s consent (and is generally more relevant to actions related to trespass instead of negligence as the consent necessary to negate an offense of battery is satisfied by broad disclosure to the patient regarding the nature of the procedure).

Thus considering the importance of the respondent patient’s situation and not simply medical opinion as to whether certain risks should be disclosed, the Court determined that, although the respondent patient didn’t specifically ask about danger to her left eye from surgical complications it was clear she was concerned that no injury should befall it, and thus it could be argued that the risk was material and required a warning. The Court therefore rejected the appellant doctor’s argument on the issue of breach of duty and dismissed the appeal.

Justice Gaudron concurred with the majority opinion, but noted that liability should not be limited in the in areas of diagnosis and treatment to the Bolam test, as such areas also involve matters of common sense in addition to medical expertise. The Bolam test might be useful with regard to the onus of proof, but other than having “some utility as a rule-of-thumb in jury cases”, it had no other useful function. Justice Gaudron further noted that a medical practitioner’s duty to inform and advise the patient is determined by the needs, concerns and circumstances of the patient, and the information provided should be either in response to particular questions asked by the patient or what “would be reasonably required by a person in the position of the patient.” There was therefore “no basis for treating the doctor’s duty to warn of risks (whether in the treatment or procedures proposed or otherwise attending the patient’s condition or circumstances) as different in nature or degree from any other duty to warn of real and foreseeable risks.”

“One consequence of the application of the Bolam principle to cases involving the provision of advice or information is that, even if a patient asks a direct question about the possible risks or complications, the making of that inquiry would logically be of little or no significance; medical opinion determines whether the risk should or should not be  disclosed and the express  desire of a particular patient for information or advice does not alter that opinion or the legal significance of that opinion. The fact that the various  majority opinions in Sidaway, for example, suggest that, over and above the opinion of a respectable body of medical practitioners, the questions of a patient should truthfully  be answered (subject to the therapeutic privilege) indicates a shortcoming in the Bolam approach. The existence of the shortcoming suggests that an acceptable approach in point of principle should recognise and attach significance to the relevance  of a patient's questions. Even if a court were satisfied that a reasonable person in the patient's position would be unlikely to attach significance to a particular risk, the fact that the patient asked questions revealing concern about the risk would make the doctor aware that this patient did in fact attach significance to the risk. Subject to the therapeutic privilege, the question would therefore require a truthful answer.” 630-631.

“There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined  from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between  undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information.” 632-633.