Reibl underwent surgery for the removal of an occlusion in the left internal carotid artery. Hughes, the surgeon, performed the surgery properly, however either during or immediately after the surgery the plaintiff had a massive stroke that left him paralyzed on the right side of his body and impotent. Prior to the surgery the respondent did not inform the appellant specifically about the risk of stroke. The appellant consented to the surgery. He only had 1.6 years left at his job before he was eligible for his pension and extended disability benefits. Reibl was successful at trial and recovered $225,000; however a new trial was awarded upon appeal.
- How specific must the information about the risks of a medical procedure be to enable a person to make an informed choice between surgery and no surgery?
Appeal allowed with costs, trial judgment restored.
Laskin, writing for a unanimous court, agrees with the trial judge that Hughes did not properly inform Reibl of the risks involved. He holds that you must inform a patient about all potential material risks, and specifically if there is any chance of death or paralysis it should be discussed even if the chances are very small. In the case at bar the chances of having a stroke were about 1 in 10. The doctor told the appellant that he would be better off having the surgery (it was not an emergency), but this is the extent of the information provided. Reibl believed that the surgery would correct his headaches and allow him to work better, but the doctor did not guarantee this.
Even with this finding, however, Laskin states that the doctor is not liable for battery. Actions for battery in respect to surgery or other medical procedures should be limited to circumstances where consent has not been given for the particular procedure. This was a breach of the duty of care; there is no invalidity to the consent given.
Laskin holds that the Ontario Court of Appeal gave too much deference to doctors. Although medical information is necessary and very helpful in determining if sufficient information was given, it is not determinative. Medical information does not determine whether there has been a breach the duty of care. The test is whether a reasonable person in the appellant's shoes would have elected to have the surgery or not when the proper information was known (an objective test). In the case at bar the court must also consider Reibl's work situation. The court finds that a reasonable person would have delayed the surgery if they had known all of the information. Causation is satisfied as with the proper information the plaintiff would not have had the surgery or the resulting stroke.
- Doctors must inform their patients of all material risks before the patient can give informed consent. This includes a discussion of any possible serious outcomes such as death or paralysis, even if they are very remote.
- The test to see if enough information has been given is to objectively ask: would a reasonable person in the plaintiff's shoes decide to have the surgery or not if they were given all of the information? Is this different than the answer with only the amount of information that was given?