The Ontario Court of Appeal in Denman v. Radovanovic 2024 ONCA 276 has provided helpful guidance on a patient’s right to informed consent where treatment is provided by a multi-disciplinary team. The case is welcome news as it bolsters patients’ rights to full disclosure before proceeding with risky, multi-step medical procedures.
What Happened?
In Denman, the Plaintiff (Mr. Denman) was 54 years old and the primary income earner in his family. He supported his wife, and two daughters, one of whom had a disability. Mr. Denman suffered a stroke in 2010 and was diagnosed with an anterior ventricle malformation in his brain, or AVM for short. An AVM can rupture causing a more severe stroke and disability, if left untreated. The risk of such an event occurring over one’s lifetime is between 40 and 60%. Mr. Denman underwent Gamma Knife stereotactic radiosurgery, a non-invasive low risk surgery, but it did not resolve his AVM. He returned to work in 2012 and was relatively stable. He had a few headaches, but otherwise was doing well.
Failure to Disclose Comprehensive Risks
Mr. Denman’s treatment team decided to review his case. It included a neurosurgeon, neuroradiologist and diagnostic radiologist. The team formulated a treatment plan which they thought would cure the AVM. The plan was to perform at least one, but possibly multiple embolization surgeries. These surgeries were complex, difficult and carried a known risk of stroke.
The diagnostic radiologist, not the physician who would perform the surgery, met with him to discuss the treatment plan, risks and benefits. The radiologist only discussed the first embolization surgery and the risks of that surgery. Mr. Denman was told the risk of stroke was 3 to 5%. In fact, the risk of proceeding with three surgeries, which was possible, created a much higher risk of stroke, in a range of 30 to 50%. Mr. Denman was not told he would likely need more surgeries. Mr. Denman agreed to proceed and underwent the first surgery. It was not successful. A second embolization surgery was not successful. He therefore required a third surgery. Before proceeding with it, he was told the risk of an adverse outcome was 10 to 15%. Unfortunately, Mr. Denman suffered a stroke in the third surgery when the AVM burst.
Court Clarifies Disclosure Requirements in Multi-Disciplinary Healthcare
The Court of Appeal upheld the trial decision which found that Mr. Denman was not fully informed of the risks of the planned surgeries, and had he been so informed a reasonable person in his circumstances would not have gone ahead. The Court explained that to advance a claim based on a lack of informed consent, a Plaintiff must prove that:
they would not have undergone the procedure had they been adequately informed, and
a reasonable person in the patient’s position would not have undergone the procedure if given adequate information.
Even if a patient establishes that they would have delayed going ahead with the surgery to a later point in time, this still meets the legal test.
Finally, the Court explained that the duty of disclosure of risk is not limited to the physician who carries out the procedure. A physician not performing a procedure may, depending on the situation, also have a duty of disclosure. For Mr. Denman, this meant his diagnostic radiologist needed to do a better job of understanding the risks of not just the first surgery, but the entire process, and to adequately explain those risks to Mr. Denman. That was not done. As a result, all three physicians were held liable.
What the Denman Decision Means
The Denman decision clarifies the disclosure requirements for patients who receive multi-disciplinary, team-based treatment, which is becoming increasingly commonplace.
If you are concerned about informed consent and medical malpractice, please contact our team of professional personal injury lawyers. We can help you navigate the process and understand your options moving forward.
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