In 2010, Elaine Warlow began experiencing a painful toothache. It was a gum infection—probably due to some impacted food. Dr. Ali Sadeghi, an oral surgeon, recommended the removal of an impacted wisdom tooth where the infection was concentrated. Ms. Warlow consented. During the surgery, Dr. Sadeghi struck a nerve. As a direct consequence, Ms. Warlow was injured and left with chronic pain.
Ms. Warlow's life was devastated. Prior to the surgery, she was in good health, athletic, maintained an active social life and was about to begin a promising new career. Following her injury, her new career was finished before it could start, her earning ability decreased, she stopped exercising, and she became socially isolated.
Ms. Warlow brought an action for damages against Dr. Sadeghi. At the Supreme Court of British Columbia, the core issue was whether Dr. Sadeghi properly informed Ms. Warlow about the risks of the procedure to remove the wisdom tooth. Although Dr. Sadeghi warned of the risk that she may experience "pins and needles" or "numbness," there was no mention of the potential for permanent nerve damage. By this omission, Ms. Warlow's consent was not informed. However, the trial judge concluded that a reasonable person in Ms. Warlow's shoes with full knowledge of that risk would have proceeded with the surgery. Consequentially, the action against Dr. Sadeghi was dismissed. The Court of Appeal for British Columbia upheld that dismissal.
The importance of health and medical practitioners providing sufficient information for patients to make informed choices about their care is paramount. But, if they fail to do so, they may not face legal liability if a properly informed person would have consented anyway.
Background
The fundamental first step of any medical treatment is to ensure that the patient consents.2 Under the Ontario Health Care Consent Act, 1996, unless it is an emergency, no treatment may be performed unless consent is given by a patient who has the capacity to consent.3 Where the patient lacks capacity, their substitute decision-maker must give the consent. Consent must be voluntary, without misrepresentation, and it must relate to the nature of the proposed treatment.4 Consent may be either express or implied, and it may be withdrawn at any time.5
Consent must also be informed. For a patient to be properly informed, they must be advised of the nature and expected benefits of the treatment, but also the material risks and side effects.6 The properly informed patient would also be advised of alternative courses of action and the possible consequences of not undergoing the treatment. Lastly, the patient must have the opportunity to ask questions, and their questions must be answered. In sum, the patient must be given all of the information "that a reasonable person in the same circumstances would require in order to make a decision."7
Practitioners could be liable if they fail to provide this informed consent—even if they were otherwise performing within the appropriate standard of care.8 Failing to provide the proper information is a distinct cause of action from an action in negligence.
The Case of Warlow v Sadeghi
In the case against Dr. Sadeghi, the trial judge found that he failed to properly inform Ms. Warlow of the risk that temporary or permanent nerve pain could result from the procedure to extract her wisdom tooth.9 Dr. Sadeghi testified that he did indeed describe to Ms. Warlow the alternatives, the risks of the treatment, and the risks of not undergoing the treatment—all in a conversation which lasted only a few minutes.10 In particular, Dr. Sadeghi informed Ms. Warlow that doing nothing could lead to hospitalization or death due if infection were to recur.
Dr. Sadeghi conceded that he did not specifically articulate the risk of "permanent nerve pain" or "permanent neuropathic pain."11 Although he did state that there was a ~2% chance of injuring a nerve, he described the possible outcome as limited to "pins and needles" or "tingling."12 The trial judge described this somewhat benign characterization as quite different from the risk of permanent pain.13
Dr. Sadeghi made the conscious choice not to inform Ms. Warlow of the risk of permanent pain because he felt that it was very remote. He had never seen any study or encountered a single case of permanent pain from this type of nerve injury.14 In this respect, the risk was "unusual."
Nonetheless, the court held that Dr. Sadeghi should have disclosed the risk of permanent pain. As he did not, Ms. Warlow's consent to the treatment was not properly informed. Lacking informed consent, the question then shifted to what would have been decided if Dr. Sadeghi did properly inform his patient.
Establishing Liability Under the Modified Objective Test
To establish liability for the health or medical practitioner where consent is not informed, the Supreme Court articulated the "modified objective test," as stated in Reibl v Hughes and affirmed in Arndt v Smith.15 After the plaintiff proves that a "material, special, or unusual" risk was not disclosed which ought to have been, the plaintiff must prove that a reasonable person in that position would not have agreed to the treatment even if adequately advised of the risks.16
This next issue is a question asked in two stages, as per the Ontario Court of Appeal decision of Bollman v Soenen.17 At the first stage, the question is: what would the patient themselves have done? At the second stage, the question is: what would a reasonable person in the shoes of the patient have done? At both stages, the answer must be that informed consent would not have been given in light of the new information.
In Ms. Warlow's case, the trial judge could make no determination as to what she would have done if she was properly informed. Ms. Warlow had the burden to testify as to what she would have done, but she did not.18 Although she stated that she would not have given consent if she knew that she would "end up like this," this was not helpful.19 No one would consent to treatment if they knew they would be worse off. The issue was: if she was aware of the risk, would she have consented? Ultimately, the first stage could not be answered; Ms. Warlow's informed choice could not be inferred.
At the second stage, the trial judge reviewed the relevant circumstances to determine what an adequately informed reasonable person would have done in Ms. Warlow's position. To answer this question, the trial judge considered how Dr. Sadeghi outlined that extraction of the wisdom tooth was the best option under the circumstances and that it was a common procedure.20 The trial judge ultimately concluded that a reasonable person in Ms. Warlow's position would have consented to the treatment even where properly informed of the consequences of nerve injury and the risk of permanent pain.21
Given the fact that Ms. Warlow's informed choice could not be inferred and that an adequately informed reasonable person would have consented to the treatment, Dr. Sadeghi was found not liable for any damages to Ms. Warlow. On appeal, the Court of Appeal for British Columbia upheld the lower court's decision.22
Conclusion
The notion of informed consent is enshrined as critically significant by the legislature and by the judiciary. Absent circumstances of emergency, health and medical practitioners must provide their patients with all of the requisite information necessary for them to make informed choices about medical treatments. This information includes the benefits, risks, side effects, alternatives, and possible consequences of not undergoing the treatment.
Where a health or medical practitioner fails to provide information about a risk to their patient which ought to have been disclosed—even if that risk is "unusual"—they may face liability for the damages which may result. However, even if informed consent is not given, practitioners will not face any liability if the properly informed patient and a properly informed reasonable person would have consented to the treatment nonetheless.
Footnotes
1. Warlow v. Sadeghi, 2021 BCCA 46 (CanLII) [Warlow].
2. Male v Hopmans et al, 1967 CanLII 146 (ON CA).
3. SO 1996, c 2, Sched A, ss 10, 18(4), 25(1). British Columbia has a similar statutory regime for medical consent; see: Health Care (Consent) And Care Facility (Admission) Act, RSBC 1996, c 181, s 5.
4. Ibid, s 11(1).
6. Ibid, ss 11(2)-(3).
7. Ibid.
8. Watson v Dr Shawn Soon, 2018 ONSC 3809 (CanLII) at paras 81-82.
9. Warlow, supra note 1 at para 3.
10. Ibid at paras 21-22.
11. Ibid at para 23.
12. Ibid at para 20.
13. Ibid at para 25.
14. Ibid at para 23.
15. Reibl v Hughes, 1980 CanLII 23 (SCC) cited by Arndt v Smith, 1997 CanLII 360 (SCC) cited by ibid at para 18.
16. Warlow, supra note 1 at para 33.
17. Bollman v Soenen, 2014 ONCA 36 (CanLII) at para 21.
18. Warlow, supra note 1 at para 39.
19. Ibid at para 38.
20. Ibid at para 41.
21. Ibid at para 27.
22. Ibid at para 42.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
