In Ontario, the law allows a plaintiff to sue a physician if they conduct a medical procedure without the patient’s informed consent, resulting in injury—even if the injury was not due to negligence.

Context of Elective Procedures and Treatments

For example, injuries often arise in the context of elective procedures or treatments, such as surgeries after conservative treatment fails, or chiropractic treatments. Even if the surgery or treatment was not conducted negligently, the plaintiff will have a case if they can prove it was conducted without informed consent.

Challenges in Proving Informed Consent

Proving such a case is not as easy as it sounds. A plaintiff cannot use hindsight to make their case. Many people claim they would not have proceeded with a surgery or treatment if they knew it would hurt them. However, this is not the legal test. The situation is much more complicated. Additionally, the plaintiff cannot use the “I didn’t read it, I just signed it” excuse regarding written waivers or consents.

Legal Requirements for Physicians

The law requires that before an elective treatment, a physician must provide adequate information to the patient without being asked and advise the patient of alternative treatment options, including no treatment at all, along with the comparative risks between the options. Adequate information means explaining the nature of the treatment and any material, special, or unusual risks. Whether adequate information and alternatives are properly explained to a patient depends on the specific case’s factual circumstances and can include statistical evidence on risk or success rates where appropriate.

The Burden of Proof on the Plaintiff

The plaintiff must show causation, meaning: a) If they had been given adequate information and alternatives, they would not have gone through with the treatment. b) A reasonable person in the plaintiff’s shoes would not have undergone the treatment (the ‘reasonable person’ test).

This can be difficult to prove because people do not always carefully measure their options and often want to treat whatever condition they are seeking help for, regardless of the potential consequences.

Importance of Documentation

A physician will not often have a specific memory of the patient interaction giving rise to an informed consent claim because they see many patients. Therefore, it is very important to review the documentation (notes, records, written consents, etc.) created by the doctor to determine what was explained to the patient. If the notes are lacking, it can strengthen the plaintiff’s case since the plaintiff will generally have a better memory of the discussion.

Contact Us for Legal Assistance

If you have been injured during a medical procedure or treatment and would like to discuss your potential options, please contact us.

Joseph Dart is a partner at Bergeron Clifford LLP. He graduated from Yale University in New Haven, CT. He graduated from Queen’s University Law School in 2005, where he received several course prizes.

Joseph was called to the bar in 2006, and began his legal career as a crown prosecutor in the Crown Attorney’s Office, first in Scarborough, and later in Belleville, where he worked on various high-profile criminal cases. During his time with the Crown’s Office, Joseph litigated many cases in both the provincial and superior courts of Ontario.

Joseph joined Bergeron Clifford in 2015, and represents plaintiffs in negligence, medical malpractice and auto cases.  He has tried and argued cases before the Ontario Superior Court of Justice and Ontario Court of Appeal, along with the License Appeals Tribunal, Social Security Tribunal of Canada and Workplace Safety and Insurance Appeals Tribunal.

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