Reibl v. Hughes (1980), 33 N.R. 361 (SCC)
MLB headnote and full text
Reibl v. Hughes
Indexed As: Reibl v. Hughes
Supreme Court of Canada
Laskin, C.J.C., Martland, Dickson, Beetz, Estey, McIntyre and Chouinard, JJ.
October 7, 1980.
Summary:
This case arose out of an action by a patient against a doctor for failing to inform the patient of the risks of surgery. The trial judge allowed the patient’s action and awarded the patient $225,000. The doctor appealed to the Ontario Court of Appeal.
The Ontario Court of Appeal ordered a new trial on both liability and damages. The patient appealed to the Supreme Court of Canada.
The Supreme Court of Canada allowed the appeal, set aside the judgment of the Ontario Court of Appeal and restored the judgment at trial.
Medicine – Topic 3048
Relation of doctor with patient – Consent to treatment – Negligence, duty of treating doctor to inform patient – A neurosurgeon performed surgery to remove an occlusion in the patient’s carotid artery – Immediately following the operation the patient suffered a massive stroke which left him partially paralyzed – The patient alleged that he was not informed of the risks of the surgery – The doctor told the patient he would be better off to have the operation than not to have it, but he did not tell the patient of the approximate 10% risk of a stroke and death – The Supreme Court of Canada affirmed the trial judge who held the doctor liable to the patient and awarded the patient $225,000 – The Supreme Court of Canada stated that the doctor was negligent in failing to inform the patient of a material risk (see paragraph 41).
Medicine – Topic 3048
Relation of doctor with patient – Consent to treatment – Duty of treating doctor to inform patient – The Supreme Court of Canada stated that a surgeon has a duty to disclose to a patient all material risks of proposed surgery – The Supreme Court of Canada stated that mere possibilities should also be disclosed where the occurrence of the possibility could result in serious consequences (see paragraph 4).
Medicine – Topic 3048
Relation of doctor with patient – Consent to treatment – Duty of treating doctor to inform patient – The Supreme Court of Canada stated that a determination of what are material risks in the circumstances of proposed surgery or treatment should not be based solely on expert medical evidence (see paragraphs 17 and 18).
Medicine – Topic 3050
Relation of doctor with patient – Consent to treatment – Negligence, causation – The Supreme Court of Canada stated that an objective standard rather than a subjective standard should be used to determine the issue of causation (see paragraphs 21 to 27).
Medicine – Topic 3041
Relation of doctor with patient – Consent to treatment – General principles – The Supreme Court of Canada stated that actions for battery in respect of surgical treatment should be confined to cases where there has been no consent at all to the surgery performed (see paragraphs 9 to 13).
Cases Noticed:
Hopp v. Lepp (1980), 32 N.R. 145; 22 A.R. 361, refd to. [para. 4].
Kelly v. Hazlett (1976), 15 O.R.(2d) 290, refd to. [para. 9].
Schloendorff v. Society of New York Hospital (1914), 211 N.Y. 125, refd to. [para. 11].
Marshall v. Curry, [1933] 3 D.L.R. 260, refd to. [para. 12].
Murray v. McMurchy, [1949] 2 D.L.R. 442, refd to. [para. 12].
Mulloy v. Hop Sang, [1935] 1 W.W.R. 714, refd to. [para. 12].
Winn v. Alexander, [1940] O.W.N. 238, refd to. [para. 12].
Schweizer v. Central Hospital (1974), 53 D.L.R.(3d) 494, refd to. [para. 12].
Canterbury v. Spence (1972), 464 F. 2d 772, refd to. [para. 21].
Cobbs v. Grant (1972), 502 P. 2d 1, refd to. [para. 21].
Barnette v. Potenza (1974), 359 N.Y.S. 2d 432, refd to. [para. 21].
Koehler v. Cook (1975), 65 D.L.R.(3d) 766, refd to. [para. 22].
Kelly v. Hazlett (1976), 15 O.R.(2d) 290, refd to. [para. 22].
Authors and Works Noticed:
New Trends in Informed Consent (1975), 54 Neb. L. Rev. 66, page 90 [para. 19].
Informed Consent – A proposed standard for Medical Disclosure, (1973), 48 N.Y.U.L. Rev. 548, page 550 [para. 22].
Counsel:
D.W. Goudie, Q.C., for the appellant;
D.K. Laidlaw, Q.C. and C.L. Campbell, Q.C., for the respondent.
This appeal was heard by LASKIN, C.J.C., MARTLAND, DICKSON, BEETZ, ESTEY, McINTYRE and CHOUINARD, JJ. of the Supreme Court of Canada at Ottawa, Ontario on June 5, 1980.
The judgment of the Supreme Court of Canada was delivered by LASKIN, C.J.C. on October 7, 1980.
