| From: | Barbara Legate <blegate@legate.ca> |
| To: | Andrew Tettenborn <A.M.Tettenborn@swansea.ac.uk> |
| Marc Ramsay <marc.ramsay@acadiau.ca> | |
| CC: | obligations@uwo.ca |
| Date: | 14/10/2010 21:15:18 UTC |
| Subject: | RE: informed consent/neglience question |
I would say there is liability. The issue
is on causation is whether the patient would have undertaken the surgery if
fully informed of the risks. If the answer is no, the risk of partial paralysis
being the tipping point, then as a matter of a finding of fact, the surgery
would not have occurred and the loss would not have occurred. Similarly, if a
patient should hear of several risks, none of them terrible, but one of which would
be his tipping point – that is, it is one too many, can he only sue for
the one that tipped him over the edge, but none of the others?
I have looked at this before, and was unable
to find any case that said, bluntly, that the risk that was not warned of had
to occur. I would be interested in any case which does say that.
An interesting problem.
Barb Legate
From: Andrew Tettenborn
[mailto:A.M.Tettenborn@swansea.ac.uk]
Sent: October-14-10 10:54 AM
To: Marc Ramsay
Cc: obligations@uwo.ca
Subject: Re: informed
consent/neglience question
On 14/10/2010 15:33, Marc Ramsay wrote:
I have a question
about the Reibl v. Hughes test regarding disclosure of material facts.
Suppose the following.
A patient consents to a surgical procedure.
A given risk, let's a 5 percent chance of partial paralysis, is determined to
be a material risk, and that risk is not disclosed. The physician doesn't
discuss this risk at all. There are no other problems with the quality of the
patient's consent.
The procedure is performed competently, but the patient suffers serious
injury. However, the injury is not a matter of the relevant risk
materializing.
The patient's loss concerns another risk which,
1) the patient was informed of (perhaps even signed a waiver regarding), or
2) an unforeseeable or previously unknown risk that the physician cannot been
have expected to know about or disclose (perhaps the patient suffers hearing
loss or loss of sight).
Is it appropriate to the proceed to the causation question in either of these
cases (what a reasonable patient would have chosen in the circumstances), or
are these kinds of losses to be treated as outside the scope of the physician's
wrongdoing?
Thanks,
Marc Ramsay
There shouldn't be
liability here. But the real issue is one of adventitious causation. And there
are plenty of examples stating that it's not necessarily enough to show (1) a
wrong by D, and (2) harm to P that technically wouldn't have happened but for
that wrong. Two below:
A. I drive the wrong way down a one-way street. Despite my exemplary look-out,
a valuable Persian cat runs in front of my car and gets squished. I don't think
I can be liable for the loss of the cat, even though it wouldn't have been
killed had I not (negligently) driven down the one-way street (since I would
have been somewhere else). The maritime decision in The Estrella [1977] 1
Lloyds Rep 525 has something of this about it.
B. The shipping case of The Empire Jamaica. [1957] AC 386. Shipowners show
personal fault in appointing a technically uncertificated officer. As a result
of other negligence by the officer, nothing to do with the lack of the
certificate, there is a casualty. Is the casualty due to the actual fault or
privity of the shipowners (on the basis that it wouldn't have happened if the
owners had done as they should and not appointed the officer)? No.
Best to all
Andrew
--
|
|
Andrew Tettenborn Ysgol y Gyfraith, Prifysgol Abertawe |
Lawyer (n): One versed in circumvention of the law
(Ambrose Bierce)