Hopp v. Lepp, [1980] 2 SCR 192

SUPREME COURT OF CANADA

Hopp v. Lepp, [1980] 2 S.C.R. 192

Date: 1980-05-20

Phillip G. Hopp (Defendant) Appellant; and

Aron E. Lepp (Plaintiff) Respondent.

1980: March 20; 1980: May 20.

Present: Laskin C.J. and Martland, Ritchie, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Physicians and surgeons — Negligence and battery — Informed consent — Duty of disclosure — First operation — Routine disc operation — Seriousness of operation — Special and unusual risks — Specific questions by patient.

The appellant is an orthopedic surgeon practising in Lethbridge, Alberta. He had performed a disc operation on the respondent, having first obtained his formal signed consent. A myelogram had disclosed a block in the spinal canal and the appellant had removed a por­tion of the disc between the third and fourth lumbar vertebrae (the operation is known as a hemilaminecto­my). An X-ray confirmed that the blockage had been removed. Subsequently, with the respondent not improv­ing as expected, it was determined that a blockage still existed and the appellant referred the respondent to a neurologist in Calgary who discovered a complete blockage between the third and fourth vertebrae. A Calgary neurosurgeon was called in who performed an extensive decompressive laminectomy from the second to the fifth lumbar vertebrae. This operation, involving considerable exploring, revealed a large chunk of extruded disc ma­terial between the third and fourth lumbar vertebrae, and it was removed. The respondent, who was left with permanent disability, sued the appellant for damages sounding in negligence and in battery. The trial judge dismissed the action in so far as it was founded on negligence—there was no appeal with respect to that finding—and dismissed it also on the second branch of the respondent's claim. The Court of Appeal, by a majority, allowed the appeal, holding that the consent given to the operation was not an informed consent and hence there was an unlawful invasion of the respondent's bodily security, a battery or assault. It awarded damages of $15,000.

Held: The appeal should be allowed.

The main issue argued before this Court was whether there was informed consent. A patient's consent will give protection to his surgeon or physician only if the patient

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has been sufficiently informed to enable him to make a choice whether or not to submit to the surgery. The issue of informed consent is at bottom a question whether there is a duty of disclosure, and, if so, the extent or scope of the duty.

In the present case, there were three aspects to this issue. 1) Did the appellant have the duty to tell the respondent that it would be his first such operation after obtaining his specialist licence and entering private practice? The trial judge held correctly that the appel­lant was fully qualified and was under no obligation to tell the respondent that this was his first operation, when it was clear that he was not inexperienced. 2) Did the appellant have the duty to tell the respondent that if there were complications he would not be able to call on any neurologist or neurosurgeon in Lethbridge because there were none there at the time? Here, the expert evidence was that the operation was a routine disc operation and could be performed as well in Lethbridge as in Calgary, and the trial judge correctly held that although there was a possibility of complications as there is in any operation, there was no probability of that, and where there is no special or unusual risk involved, the surgeon or physician is not obliged to alert the patient. 3) What is the duty of disclosure of the appellant with respect to the seriousness of the opera­tion? Here, the respondent's own evidence shows that the question of the seriousness was subsumed in the issue of the appellant's qualifications and in whether the operation could be performed as well in Lethbridge as in Calgary.

If no specific questions are put as to possible risks, the surgeon is under no obligation to tell the patient that there are possible risks since there are such risks in any operation. The decided cases appear to indicate that a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case. Here, there was no reason for this Court to disagree with the findings of the trial judge.

Parmley v. Parmley and Yule, [1945] S.C.R. 635; Halushka v. University of Saskatchewan (1965), 53 D.L.R. (2d) 436; Smith v. Auckland Hospital Board, [1965] N.Z.L.R. 191; Kenny v. Lockwood, [1932] O.R. 141;

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Nocton v. Ashburton, [1914] A.C. 932; Hedley Byrne v. Heller, [1964] A.C. 465; Canterbury v. Spence (1972), 464 F. 2d 772; Male v. Hopmans (1967), 64 D.L.R. (2d) 105; Kelly v. Hazlett (1976), 15 O.R. (2d) 290, referred to.

APPEAL from a judgment of the Court of Appeal of Alberta[1], allowing the appeal by the respondent of the judgment of the Supreme Court of Alberta. Appeal allowed.

J. C. Major, Q.C., and F. Dearlove, for the appellant.

J. N. Le Grandeur, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal, which is here by leave of this Court, concerns the liability of the appellant doctor, an orthopedic surgeon practising in Lethbridge, Alberta, for damages sounding in negligence and in battery. He had performed a disc operation on the plaintiff, then sixty-six years of age, on March 20, 1974, having first obtained the plaintiffs formal signed consent. The operation was competently performed. It was preceded by a myelogram on March 13, 1974, which disclosed a block in the spinal canal, confirming a diagnosis made by the plaintiff's family physician and also by the appellant who had been called in for consultation.

The defendant had removed a portion of the disc between the third and fourth lumbar vertebrae (the operation was known as a hemilaminectomy) and a subsequent probe of the area satisfied the appellant that the spinal cord could be freely manipulated and that, consequently, the plaintiff would be relieved of his prior symptoms and the pain which first afflicted him on his return to Lethbridge on February 25, 1974, from a motor trip. An X-ray on March 25, 1974, confirmed the appellant that the blockage disclosed by the myelo­gram had been removed by the operation.

Subsequently, with the plaintiff not improving as expected, it was determined that a blockage still existed and the appellant referred the plaintiff to a

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neurologist in Calgary who, after examination and a myelogram, discovered a complete blockage be­tween the third and fourth lumbar vertebrae. A Calgary neurosurgeon was called in who, on April 27, 1974, performed an extensive decompressive laminectomy from the second to the fifth lumbar vertebrae. This operation, involving considerable exploring, revealed a large chunk of extruded disc material between the third and fourth lumbar vertebrae, and it was removed. The trial judge found that this extruded material only became apparent because of the extensive and exploratory nature of the second operation and, if present when the appellant performed the much less com­plex operation, it was not unreasonable that it would not have become apparent to him.

Unfortunately, as the trial judge has found, the plaintiff has been left with permanent disabilities because of permanent damage to certain nerves in the nerve root canal. However, the trial judge found that there was no negligence on the appel­lant's part either in his diagnosis or in deciding, on the basis thereof, to perform the particular opera­tion that he did perform. Nor was there any negligence in the post operative care and treatment of the plaintiff, nor was it unreasonable for the appellant to wait as long as he did, about a month, before calling in other specialists. Accordingly, he dismissed the action in so far as it was founded on negligence. The findings and conclusion of the trial judge on this branch of the case were not ques­tioned in the Alberta Appellate Division (now known as the Alberta Court of Appeal). That Court, by a majority, differed, however, with the trial judge on his dismissal of the action on the second branch of the plaintiff's claim, holding, that the consent given to the operation was not an informed consent and hence there was an unlawful invasion of the plaintiff's bodily security, a battery or an assault. It awarded damages of $15,000.

Whether there was informed consent was the main issue argued in this Court. It is an issue that comes before this Court for the first time. The

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term "informed consent", frequently used in American cases, reflects the fact that although there is, generally, prior consent by a patient to proposed surgery or therapy, this does not immu­nize a surgeon or physician from liability for bat­tery or for negligence if he has failed in a duty to disclose risks of the surgery or treatment, known or which should be known to him, and which are unknown to the patient. The underlying principle is the right of a patient to decide what, if anything, should be done with his body: see Parmley v. Parmley and Yule[2], at pp. 645-46. (I leave aside any question of emergency or of mental incompe­tency and, also, situations where the operation or treatment performed or given is different from that to which the patient consented.) It follows, therefore, that a patient's consent, whether to surgery or to therapy, will give protection to his surgeon or physician only if the patient has been sufficiently informed to enable him to make a choice whether or not to submit to the surgery or therapy. The issue of informed consent is at bottom a question whether there is a duty of disclosure, a duty by the surgeon or physician to provide information and, if so, the extent or scope of the duty.

In the present case, there were three aspects to this issue. First, the appellant told the plaintiff that he was qualified to perform the operation, but did not tell him that it would be his first such opera­tion after obtaining his specialist licence and enter­ing private practice in Lethbridge. Second, he told the plaintiff that the facilities for performing the operation were as good in Lethbridge as they were in Calgary where the plaintiff had thought of going, but did not indicate to him that if there were complications he would not be able to call on any neurologist or any neurosurgeon in Lethbridge because there were none there at the time. Third, he did not tell the plaintiff that the operation was a serious one, but rather that it was not serious and the plaintiff would be up and about in six to ten days.

On the first aspect, the evidence showed that the appellant had performed many such operations

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while a resident in a teaching hospital, and about thirty of the more than sixty performed by him were done without actual supervision although there was a specialist at hand. The trial judge found that the appellant was fully qualified and was under no obligation to tell the plaintiff that this was his first operation after his certification. In the trial judge's view, it would be ridiculous to require a licensed specialist to tell a patient (at least without being asked) how many operations of the kind in question he had performed when it was clear that he was not inexperienced. On the second aspect, the expert evidence was, as the trial judge found, that the operation was a routine disc opera­tion and could be performed as well in Lethbridge as in Calgary. There was, the trial judge said, a possibility of complications as there is in any oper­ation (and in this respect there could be an advan­tage in having the operation in Calgary where there were other specialists available) but, again on the evidence, there was no probability of that, and there was no special or unusual risk involved that would then oblige the appellant to alert the plaintiff to it. The trial judge relied in this respect on the judgment of Hall J. in Halushka v. Univer­sity of Saskatchewan[3], at p. 442.

There was no specific finding by the trial judge on the question of the seriousness of the operation, but it seems to me that the answer was com­prehended in the evidence that the particular oper­ation was a routine one and in the finding of the trial judge to that effect. The trial judge also said that, after the myelogram on March 13, 1974, which disclosed the block in the spinal canal, "the defendant spoke to the plaintiff and told him the results thereof and advised him that the only solu­tion to the problem was surgery and went into some detail with respect to the operation which was recommended". It did not, therefore, appear to. the trial judge that there was any real issue about the patient not knowing of the seriousness of the operation. The plaintiff's own evidence shows that the question of the seriousness of the proposed

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operation was subsumed in the issue of the appel­lant's qualifications and in whether the operation could be performed as well in Lethbridge as in Calgary. Moreover the basic complaint of the plaintiff, as his counsel averred during the argu­ment of the appeal in this Court, was that the plaintiff did not know the operation on the plaintiff was the first that the appellant performed after beginning private practice in Lethbridge. This, however, goes to his qualifications, and on this the trial judge's finding appears to me to be unassailable.

I should add that the trial judge also held that even had he found negligence on the part of the appellant, there was no proof of damages flowing from it. Similarly, there was no proof of damages from the assault or battery, and only token damages could be awarded when the operation was a necessary one and was properly performed.

Prowse J.A., who dissented from the majority in the Alberta Appellate Division, supported the trial judge's conclusion adverse to the plaintiff on the ground that there was no specific question asked by the plaintiff that would have directed the appel­lant to disclose risks that were mere possibilities and thus would have weighed in favour of having the operation in Calgary. In his view, which was the view of the trial judge, the conversations or discussions that were alleged to have raised such a specific question were concerned with the appel­lant's competence and qualifications. Had there been a specific question of the kind alleged (and, I assume, it would be sufficient if the question or questions asked could reasonably be construed as inviting a response to possible risks), it would have been the duty of the appellant to answer it.

This brings me to consider the majority reasons of the Alberta Appellate Division delivered by Morrow J.A. He framed the issue of informed consent as it was argued by counsel for the plaintiff, namely, on the basis of assault and battery and of negligence resulting from the failure to disclose the risks involved. Whether it is consistent with an allegation of assault and battery, based on want of a valid consent, to undergird it with an

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assertion of negligence is not a question which I need to discuss or resolve in the present case. The argument advanced in the Appellate Division was also advanced in this Court. Morrow J.A., in allowing the plaintiff's appeal, based himself on both battery and negligence, adding this:

I would include negligence in the above as on the facts present in this appeal the same reasoning as is appropri­ate for battery is on my understanding of the authorities equally appropriate for negligence.

Presumably, the negligence here lay in unspoken words or in misleading words when there was a duty to speak and to be properly responsive. Since I am of the opinion that there was no warrant here for interfering with the trial judge's conclusion on the issue of informed consent (or, to put it in what I think is the preferable way, namely, that the appellant had properly discharged any duty of disclosure), I prefer to leave questions touching the relationship or availability of battery and negli­gence on that issue to another time.

What Morrow J.A. did was to reexamine the evidence which was before the trial judge, quoting extensively from it. He did not clearly or directly challenge the trial judge's finding that the appel­lant was fully qualified and had no obligation to tell the plaintiff that the operation he was going to perform was his first in private practice. Nor did Morrow J.A. squarely deal with and set aside the trial judge's finding that the particular operation could be done as well in Lethbridge as in Calgary.

What the learned Appellate Court judge fas­tened on was the seriousness of the operation and the failure of the appellant to go into some detail about the risks, whether probable or possible. This is what Morrow J.A. said on the various points raised in respect of informed consent:

With respect, I am unable to agree that if the evi­dence might have justified a conclusion that this particu­lar doctor was competent to do the operation and that the facilities were adequate at Lethbridge this by itself provided a complete answer to the issue raised with

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respect to proper instructions and to the giving of a valid and informed consent.

While it may be that there was no obligation on the doctor to volunteer that this would be his first operation on his own, that is not what he was being asked. Rather, before the patient gave his consent to the operation he wanted some assurance as to "how serious" the opera­tion was. The seriousness of the operation has to also be considered along with his previous decision with the patient and his wife to have the operation in Calgary. Now can it be said that to reply to the query of "how serious" by saying "it is not serious, in six to ten days you will be back home running around like you did before" and so answer the query about Calgary by a reply to the effect "he could do it as good as any doctor in Calgary".

I have to observe that the reply given to the Appellant is almost identical to that to be found in Smith v. Auckland Hospital Board, [1965] N.Z.L.R. 191. As in that case there was nothing said about the risk whether one takes that as "probable" or as "possible".

And there is this further concluding summarizing passage:

I am unable to find on a careful reading of the evidence, and reading it in a manner most favourable to the respondent, that the respondent doctor ever gave any further information or explanation to his patient. Then, looking at the remarks of the learned trial judge it seems to me that the judge takes the statements of the medical experts as to the nature of the actual operation, the technique followed, and their statements that for such an operation as was carried out if without complication, the Lethbridge facilities were adequate, and substitutes them or uses them as constituting a truthful explanation by the respondent himself. To nie this constitutes a manifest error and I would allow the appeal here and substitute a judgment in favour of the appellant based on both battery and negligence.

The way in which Morrow J.A. dealt with the appellant's response to an inquiry about the seri­ousness of the operation would make the response inadequate, assuming there was a specific question about the risks. However, it is clear from the trial judge's finding, that the appellant had gone into some detail about the operation—and I have already referred to this finding—-and that any question about the seriousness of the operation

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cannot be isolated from the conversations between the parties touching the operation and touching whether it could be performed as well in Leth­bridge as in Calgary.

It is not clear from Morrow J.A.'s reasons whether he considered that the patient had raised a specific question about possible risks, nor is it at all clear from the evidence that there was more than a general discussion about the operation. In the Auckland Hospital case, there was a specific question raised about the risks, and this then, on the view there taken by the New Zealand Court, put upon the doctor an obligation to respond by indicating even possible risks. I shall return to this issue shortly. I am prepared to take it from Morrow J.A.'s reference to the New Zealand case that he considered that there was a specific ques­tion about risks, enveloped in the inquiry about the seriousness of the operation. However, I am of the opinion, as apparently was the trial judge, that this is an unwarranted extrapolation of the evidence. Indeed, there is nothing in the record to support the conclusion that there were possible risks in the particular operation different from the possibilities that exist in any operation, leaving aside whether a specific question was raised as to risks.

Kenny v. Lockwood[4] is an early Ontario case on informed consent or on the duty of disclosure, and on its facts bears a resemblance to the present case. There, one of the issues was whether a surgeon had failed in an alleged duty to inform a patient of the seriousness of an operation which resulted in permanent injury, although the opera­tion was competently performed. A special dif­ficulty for the plaintiff patient in the Kenny case was that she had pleaded that the surgeon and an associated physician had "falsely and recklessly, without caring whether it was false or true or without reasonable ground for believing it to be true", represented the operation as "simple" and that "her hand would be all right in three weeks". The Court of Appeal found that there was no fraud or recklessness amounting to fraud. It none the less examined an allegation of breach of duty,

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apart from fraud, in the description of the opera­tion as simple and in the failure to point out its seriousness in that, if not successful, it might result in permanent injury. The Court of Appeal founded its assessment on Nocton v. Ashburton[5], taking the relationship of surgeon and patient to be a fiduci­ary one, requiring honesty from the surgeon. Nocton v. Ashburton is, of course, a case which was one of the underpinnings of the more extensive doctrine propounded in Hedley Byrne v. Heller[6].

The trial judge in the Kenny case had imposed liability upon the surgeon and an associate, expressing himself as follows:

I hold as a matter of law that it was the duty of the surgeons when they accepted the plaintiff as their patient to inform her as to the seriousness of her submitting to the operation at that time, and of the fact that the disease was of such a character as that it might not for a number of years cause her much suffering or inconvenience; and that the surgeons were not entitled to operate upon her hand until they put that matter with perfect frankness and plainness before her and then had her decision that she would or would not submit to the operation at that time.

The contrast between that case and the present one lies in the fact that there the trial judge ignored evidence of the surgeon that he had discussed the operation with the patient and had explained in detail to her the condition of her hand, afflicted with a progressive disease, and the operation. In the present case the trial judge had considered like evidence but it was the Alberta Appellate Division that played down this evidence.

There are observations in the Kenny case that point to the later developments as to the duty of disclosure and the later clarifications of issues not there worked out in the detail with which they have been handled in later, especially American cases and in literature on the subject: see, for

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example, Canterbury v. Spence[7]; Comment, "Informed Consent as a Theory of Medical Liabil­ity", [1970] Wisc. L. Rev. 879; Waltz and Scheuneman, "Informed Consent to Therapy", (1970), 64 N.W.U.L. Rev. 628; Comment, "Informed Consent—A Proposed Standard for Medical Disclosure", (1973), 48 N.Y.U.L. Rev. 548; Skegg, "Informed Consent to Medical Proce­dures", (1975), 15 Med. Sci. Law 124. The Ontario Court of Appeal, in reversing, by a majority, the trial judge and absolving the surgeon and his associate of liability, made it clear that the facts of the particular case are highly relevant in determining whether a duty to inform arises and its extent. There was not much authority to go on, and Nocton v. Ashburton offered the best guidance as to the existence of a duty and as to its breach which, as Lord Haldane said in that case, would be "negligence in word". He added that "the difficul­ty as regards the principle lies in its application to individual cases".

Hodgins J.A. in the Kenny case proceeded from this as follows: (at p. 156)

In particularizing its application it is stated that the duty arises: "In those cases where a person within whose special province it lay to know a particular fact has given an erroneous answer to an inquiry made with regard to it by a person desirous of ascertaining the fact for the purpose of determining his course."

It is assumed to arise in those cases where there was a breach of a duty to which equity had attached its sanction arising from the circumstances and relation of the parties, and the duty does not necessarily depend upon the putting of a question. It may arise where the very situation of the parties implied the necessity for an explanation or a warning and includes a moral, as distinguished from a legal duty to be careful, and as an obligation it arises out of the duty independently of contract or of special obligation. For, as Lord Haldane remarks, "If a man intervenes in the affairs of another

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he must do so honestly, whatever be the character of that intervention."

And there is this further pertinent observation (at p. 159):

Nor do I for a moment think that the dangers insepa­rable from any operation, such as failure or death under an anaesthetic, the danger of infection, of tetanus, of gas gangrene or gangrene, were proper or necessary to be disclosed to a patient before an operation.

I would add, taking the trial judge's finding on the point in the present case, that the risk or possibility of complications as being more easily dealt with in larger centres is also common to all operations and does not ordinarily call for particular disclosure.

Kenny v. Lockwood is important as much for what it portended as for what it actually decided. It indicated that a surgeon who recommends an operation which involves known risks, that is prob­able risks, or special or unusual risks, is under an obligation to his patient to disclose those risks and, if he fails to do so, and injury results from one of the undisclosed or not fully disclosed risks, the patient's consent to the operation will be held to be not an informed consent, although the operation itself was competently performed. Apart from sit­uations of this kind, a surgeon need not go into every conceivable detail of a proposed operation so long as he describes its nature, unless the patient asks specific questions not by way of merely gener­al inquiry, and, if so, those questions must be answered, although they invite answers to merely possible risks. If no specific questions are put as to possible risks, the surgeon is under no obligation (although he may do so) to tell the patient that there are possible risks since there are such risks in any operation. It becomes a question of fact of how specific are any questions that are put and, equal­ly, it is an issue of fact whether, questions or no questions, the evidence supports a finding that there were probable or special or unusual risks which the surgeon failed to disclose or did not fully disclose.

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No doubt, a surgeon has some leeway in assess­ing the emotional condition of the patient and how the prospect of an operation weighs upon him; the apprehension, if any, of the patient, which may require placating; his reluctance, if any, to submit to an operation, which, if the surgeon honestly believes that the operation is necessary for the preservation of the patient's life or health, may demand detailed explanation of why it is neces­sary. All of this goes to informed consent and is entirely apart from the skill and care with which the operation is performed. It is, as I noted earlier, for the patient to decide whether to allow the surgery to be carried out.

Kenny v. Lockwood was considered in Halushka v. University of Saskatchewan, supra, a case involving voluntary submission to an experiment as part of medical research into a new anaesthetic drug. The "patient" was told that a new drug was involved and that the proposed test was quite safe, having been conducted many times before. In fact, however, the new drug had not been used or tested before and there was a risk involved in the use of a new anaesthetic. Brain damage resulted to the "patient" who suffered cardiac arrest but was ultimately resuscitated. Hall J.A., speaking for the Saskatchewan Court of Appeal and affirming the trial judge's imposition of liability, on the verdict of a jury, upon the two doctors who carried out the experiment, said this:

In ordinary medical practice the consent given by a patient to a physician or surgeon, to be effective, must be an "informed" consent freely given. It is the duty of the physician to give a fair and reasonable explanation of the proposed treatment including the probable effect and any special or unusual risks.

In my opinion the duty imposed upon those engaged in medical research, as were the appellants Wyant and Merriman, to those who offer themselves as subject for experimentation, as the respondent did here, is at least as great as, if not greater than, the duty owed by the ordinary physician or surgeon to his patient. There can be no exceptions to the ordinary requirements of disclo­sure in the case of research as there may well be in

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ordinary medical practice. The researcher does not have to balance the probable effect of lack of treatment against the risk involved in the treatment itself. The example of risks being properly hidden from a patient when it is important that he should not worry can have no application in the field of research. The subject of medical experimentation is entitled to a full and frank disclosure of all the facts, probabilities and opinions which a reasonable man might be expected to consider before giving his consent. The respondent necessarily had to rely upon the special skill, knowledge and experi­ence of the appellants, who were, in my opinion, placed in the fiduciary position described by Lord Shaw of

Dunfermline in Nocton v. Lord Ashburton, [1914] A.C. 932 at p. 969.

In the view of the Court of Appeal, there were undisclosed or misrepresented facts and, it added, "[they] need not concern matters which directly cause the ultimate damage if they are of a nature which might influence the judgment upon which the consent is based".

I would refer also to Male v. Hopmans[8], a judgment of the Ontario Court of Appeal. It affirmed the trial judge's finding of liability of a physician, an orthopedic surgeon, who treated a patient for a serious infection by the use of a drug which carried the risk of impairing the patient's hearing. The treatment in question was post-opera­tive and was administered when it appeared that the patient had developed a serious pus condition in his left knee upon which an operation had been performed by the surgeon. The surgeon adminis­tered a drug which he had never used before, although knowing from the literature on it that it carried the risk of side effects. There was expert evidence that certain tests should have been car­ried out in the early stages of the treatment, and the trial judge found (and the Court of Appeal affirmed this finding) that the need for such tests ought to have been apparent to the surgeon but they were neither ordered nor made. The patient became completely deaf as a result of the treatment. It was on the ground of failure to order or make the tests that liability was imposed, this

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being the third ground of negligence charged against the surgeon.

Male v. Hopmans brought the New Zealand case of Smith v. Auckland Hospital Board[9], on appeal[10], into Canadian law, especially through the lengthy quotations by the trial judge from that case. The Smith case appears, with some caution, to formulate a professional medical standard for informed consent, as the following passage from the reasons of the trial judge in that case indicates (at pp. 250-251):

As it seems to me, the paramount consideration is the welfare of the patient, and given good faith on the part of the doctor, I think the exercise of his discretion in the area of advice must depend upon the patient's overall needs. To be taken into account should be the gravity of the condition to be treated, the importance of the ben­efits expected to flow from the treatment or procedure, the need to encourage him to accept it, the relative significance of its inherent risks, the intellectual and emotional capacity of the patient to accept the informa­tion without such distortion as to prevent any rational decision at all, and the extent to which the patient may seem to have placed himself in his doctor's hands with the invitation that the latter accept on his behalf the responsibility for intricate or technical decisions.

This duty appears to me to be governed by all the factors I have mentioned as they would be assessed and applied by a reasonably prudent medical practitioner; and the need to include descriptions of the adverse possibilities of treatment in the explanations must depend upon the significance which that prudent doctor in his patient's interests would reasonably attach to them in all the environment of the case. I certainly am not prepared to hold, in the absence of authority, that doctors should be distracted from their prime responsi­bility to care for the health of their patients by the thought that there is an almost automatic need to describe these possibilities in order to avoid a claim in negligence should something, by bad chance, go wrong.

Male v. Hopmans is not a case directly con­cerned with informed consent, but a portion of the reasons of Aylesworth J.A., who spoke for the Ontario Court of Appeal, bears on that issue,

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especially as it relates to a situation in which a patient who has a serious condition for which risky therapy or treatment is contemplated. So much depends on the particular facts, according to the Ontario Court of Appeal, when the question is whether the surgeon has a duty to warn the patient, and it may be relevant to that duty wheth­er the patient is in a condition to make a choice.

I am far from persuaded that the surgeon should decide on his own not to warn of the probable risk of hearing or other impairment if the course of treatment contemplated is administered. A sur­geon is better advised to give the warning, which may be coupled with a warning of the likely consequence if the treatment is rejected. The patient may wish to ask for a second opinion, whatever be the eminence of his attending physi­cian. It should not be for that physician to decide that the patient will be unable to make a choice and, in consequence, omit to warn him of risks. Of course, on the view already expressed that, gener­ally, there has been prior consent, the probable risks would be those that, if he was informed about them, would reasonably be expected to affect the patient's decision to submit or not to submit to a proposed operation or treatment. I find it difficult, however, to conclude that if there are probable risks (as opposed to mere possibilities such as those inherent in any operation or therapy, e.g. the risk of infection) they would not also be material in the sense of the objective standard that has been proposed in some writings and cases. Thus, in the article by Waltz and Scheuneman, referred to above, at p. 640 thereof, a proposed standard of materiality, adopted by the Court in Canterbury v. Spence, supra, is expressed as follows:

... [a] risk is ... material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to undergo the proposed therapy.

No doubt, this invites a finding of fact upon which expert medical evidence of the judgment to be exercised would be admissible but not determinative.

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Indeed, since a particular patient is involved upon whom particular surgery is to be performed or particular therapy administered, and it is a duty of disclosure to him that affects the validity of his consent, evidence of medical experts of custom or general practice as to the scope of disclosure cannot be decisive, but at most a factor to be considered.

The case law on the question of informed consent or the duty of disclosure has exhibited a variety of classifications of risks involved in proposed surgery or therapy. Probable risks, which must be disclosed, have been contrasted with mere possibilities (as, for example, risks involved in any operation), but this dichotomy cannot be absolute because it ought to take note of whether a risk is or is not quite remote, and here the gravity of the consequences, if a risk should materialize, must be brought into account; for example, the risk of death, even if a mere possibility, as contrasted with some residual stiffness of a member of the body. A second classification, expressed in American cases and American writings, is that of material and immaterial risks. Under this classification possible risks whose consequences would be grave could well be regarded as material. Materially connotes an objective test, according to what would reasonably be regarded as influencing a patient's consent.

Then there is the language of special or unusual risks, in contrast to those inherent in any opera­tion. This contrast was expressed by Morden J. in Kelly v. Hazlett[11], at p. 319. If by special or unusual risks is meant merely probable risks, then this classification is substantially the same as the probable—possible one that I have already referred to, subject to qualifying possible risks by the gravi­ty of the consequences if such a risk should materialize. Special or unusual risks may, however, go beyond those that are probable in respect of the

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surgery or therapy involved in a particular case and could relate to serious consequences in the particular instance even if the risk be a mere possibility. On this view, the classification is incomplete, in not taking account of probable risks. Of course, if specific questions are asked, this introduces another element but here the evi­dence touching the specific character of the ques­tion will first have to be assessed.

In summary, the decided cases appear to indi­cate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed opera­tion, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.

The present case is not one which calls for more refinement of issues touching the duty of disclo­sure and its extent. In my view, the findings of the trial judge make this unnecessary. There are, however, certain observations in the majority reasons of the Alberta Appellate Division to which I wish to refer. I cannot agree with Morrow J.A. when he said, in the concluding summarizing passage of his reasons, quoted above, that there was manifest error in the trial judge's acceptance of the expert evidence that the particular operation could be carried out in Lethbridge as well as in Calgary, if without complication. The appellant also so testi­fied and, on the whole evidence, including that which described the operation performed by the appellant as a routine disc operation, it was open to the trial judge to make the findings that he did make.

I agree, of course, that if Morrow J.A. meant that the patient had not been properly informed of

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the risks, whether or not the operation could be performed as well in Lethbridge as in Calgary, it was for him to decide where it should be performed. However, the record does not support a conclusion that the plaintiff had made the question of the place of performance of the operation cen­tral to his consent or that the appellant had failed to provide the information that was requested.

Morrow J.A. made two statements going to causation and to damages which I also cannot accept. The first statement is as follows:

... The evidence does leave it open for the trial judge to have reasonably found that had the operation been in Calgary, rather than in Lethbridge (accepting that there would have been consent to the operation in any event) the problem which arose from the first operation and which made the second operation necessary might at least have been discovered earlier with less possible neurological deficit.

This goes against the findings of the trial judge that (1) it could not be said that the permanent disability of the respondent had not occurred as a result of the original disc condition and (2) he was not satisfied that the extruded portion of the disc removed by the second operation was present when the appellant operated. Morrow J.A.'s reasons, at the most, go to suggest that the patient might possibly have suffered less damage if he had gone to Calgary in the first place. This was highly conjectural and cannot form the basis of a judg­ment for the patient. Morrow J.A. also appeared to found liability on the following basis (this being the second statement that I question):

... One cannot read the testimony of the appellant without gathering that in his own mind, whether it is justified or not, he has been left with the feeling that his lengthy period of recuperation and the second operation and indeed his present poor condition, is to be a considerable degree attributable to the efforts of the respondent.

This is not a tenable ground, however sympathetic one is inclined to be with the respondent's present plight.

I would allow the appeal, set aside the judgment of the Alberta Appellate Division and restore the

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judgment of Brennan J. dismissing the action. The appellant is entitled to costs throughout. The cross-appeal is dismissed without costs.

Appeal allowed with costs; cross-appeal dismissed without costs.

Solicitors for the defendant, appellant: Jones, Black & Co., Calgary.

Solicitors for the plaintiff respondent: Babki & Co., Lethbridge.