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John McKiggan Q.C.
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Informed Consent in Canada: Probability and Statistics in Cancer Claims – Gilberds v. Sobey

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The court of Queen’s Bench of Alberta released a decision recently in Gilberds v. Sobey that contained a helpful discussion about the law regarding informed consent.

Informed Consent: What is it?

Doctors are not allowed to perform a medical procedure without obtaining the permission or consent of their patient. But, Canadian courts have said that it is not enough for a patient to simply agree to the procedure. They must be fully informed about the alternatives and risks. This is what the courts, and medical malpractice lawyers call “informed consent”.

Reported medical malpractice decisions across Canada have identified five key elements that are important in determining whether the patient has given "informed consent" to medical treatment:

1. The doctor must provide a diagnosis of the patients’ condition;
2. The doctor must explain the nature of the proposed medical treatment;
3. The doctor has to provide the prognosis (probable outcome) of the medical condition with and without the proposed medical treatment;
4. The doctor must to explain the reasonable risks of the proposed treatment; and
5. The doctor has to explain the alternatives to the proposed treatment along with the advantages and risks of each alternative.

Informed Consent in Cancer Claims

In Gilberds v. Sobey the plaintiff, Heather Gilberds sued the defendant Dr. Alan Sobey for injuries to her spinal nerves which occurred during a biopsy performed by Dr. Sobey to determine whether she had cancer.

Ms. Gilberds alleged Dr. Sobey had not obtained her informed consent to the procedure because he did not explain to her the statistical risks associated with performing the biopsy.

Probabilities, Possibilities, and Statistics

Mark Twain popularized the phrase “lies, damned lies, and statistics”. Mark was obviously not a fan of statistical evidence.

However, in medical malpractice cases, statistics about risks associated with medical procedures can be important information that patients use to weigh their options.

Fortunately, Madam Justice Ross agreed that statistical evidence is important information patients should have when considering whether to undergo a medical procedure. At paragraph 81 of her decision she stated:

I agree with Ferrier J. that effective communication of treatment risks requires some information on the probability of a particular result: Matuzich v. Lieberman. The degree of probability of a risk is obviously relevant to reasonable patients considering whether they want to undergo treatment; indeed the degree of probability is one of the factors that qualifies a risk as material.

No Statistics Equals No Informed Consent

After examining the evidence, Justice Ross determined Dr. Sobey did not provide Ms. Gilberds with statistical evidence regarding likelihood of injury from the proposed medical procedure. However, Dr. Sobey had provided the plaintiff with statistics about less likely adverse outcomes. This led Justice Ross to the conclusion that Dr. Sobey’s failure to provide the statistical evidence was a breach of the standard of care resulting in a failure to obtain informed consent.

I conclude that, while Dr. Sobey did explain the risk and its consequences, his omission of the key fact of its statistical probability of occurring impaired Ms. Gilberds’ ability to weigh the risk. The seriousness of the omission is exacerbated by the fact that statistical probabilities were assigned to less likely and less serious risks, with the result that Ms. Gilberds not only lacked significant information, but may have been misled into thinking that the risk of nerve damage was substantially less than was, in fact, the case.

Lack of Informed Consent Does Not Establish Causation

Simply being able to prove lack of informed consent and breach of the standard of care does not, by itself, mean a plaintiff will be successful in a medical malpractice claim.

One of the most difficult hurdles for medical malpractice victims to overcome is proving the defendants’ conduct caused their injuries.

In the Gilberds case, Justice Ross examined the facts and determined that, even if Ms. Gilberds had been provided with the evidence about the statistical risks, she still would have undergone the medical procedure in any event.

Therefore, the doctors’ breach of the standard of care did not cause her an injury.

[105] I conclude that Ms. Gilberds was focused on finding out whether or not she had cancer. She was frank in her testimony – when she consulted with Dr. Sobey her first priority was to know whether she had a developing lymphoma and she wanted to know that now. Further, she prioritized the timing of the biopsy in manner that was, at the very least, inconvenient for her education. This conduct is evidence of the high priority Ms. Gilberds placed on immediate and definitive diagnosis of the cause of her enlarged neck lymph nodes.

[106] Ms. Gilberds had a fear of cancer and I cannot say that concern was irrational or a“purely subjective fear”. The biological mechanism of cancer means early diagnosis and treatment often reduces morbidity and mortality. Dr. Sobey testified that this is the case in relation to lymphoma.

[107] A one in twenty chance of permanent and disfiguring nerve damage and muscle dysfunction could plausibly be an objective basis on which a person would choose to defer lymph node dissection surgery to evaluate a possible but low probability risk of cancer. Some ‘surgery averse’ patients might very well take that route, if fully informed of all the risks and benefits. I conclude, on a balance of probabilities, that Ms. Gilberds was not one of those persons. Her heightened concern towards the possibility of cancer leads me to conclude that she would have proceeded with the biopsy surgery on December 14, 1999, even if Dr. Sobey had informed her of the statistical probability of the risk of spinal accessory nerve injury. That choice is one that is objectively reasonable for a person with Ms. Gilberds’ personal characteristics.

[108] As a consequence, Dr. Sobey’s breach of the standard of care in relation to obtain informed consent did not cause Ms. Gilberds’ injury.

Want More Information About Informed Consent?

You can get more information about informed consent to medical treatment on my website. I have posted a video discussing the issue.

You can also check out a copy of my book, Health Scare: The Consumer’s Guide to Medical Malpractice Claims in Canada on Amazon.com.

Or you can get a copy at no charge by contacting me through this blog (put Health Scare in the subject line) or by calling toll free in Atlantic Canada 877-423-2050. I will send you a copy, at no charge, anywhere in Atlantic Canada.

Read Health Scare: The Consumers Guide to Medical Malpractice Claims in Canada and learn the answers to these questions:

•What is medical malpractice?
•What do I need to prove to win my claim?
•What is the Standard of Care and why is it important?
•Top 10 reasons medical malpractice victims never receive compensation.
•How do I find a qualified medical malpractice lawyer?