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Informed Consent: Physician Inexperience is a Material Risk for Patients

Published online by Cambridge University Press:  01 January 2021

Richard J. Veerapen
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Extract

The Canadian law governing informed consent was significantly influenced by the decision of its Supreme Court in Reibl v. Hughes, a case that involved a physician’s failure to warn the patient about the risk of stroke after carotid endarterectomy. Even though most Canadian plaintiffs after Reibl have continued to lose informed consent cases, it is likely that the judgement in this case has significantly influenced the manner in which physicians now approach the discussion of risk while obtaining consent not only in Canada but also in several other jurisdictions.

The development of informed consent law in the United States similarly became one of the drivers for change in physicians’ practices of information disclosure to their patients. The effect of Reibl on clinical practice is an outstanding example of the law’s positive influence on medical practice, especially in protecting patient autonomy during collaborative medical decision-making.

Type
Independent
Information
Journal of Law, Medicine & Ethics , Volume 35 , Issue 3 , Fall 2007 , pp. 478 - 485
Copyright
Copyright © American Society of Law, Medicine and Ethics 2007

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References

Reibl v. Hughes, 2 S.C.R. 880 (1980).Google Scholar
Robertson, G., “Informed Consent 20 Years Later,” Precedent & Innovation: Health Law in the 21st Century, Health Law Institute Publication (2003): 153–159, available at <http://www.law.ualberta.ca/centres/hli/hl_journal.html> (last visited June 26, 2007).Google Scholar
Tay, C., “Recent Developments in Informed Consent: The Basis of Modern Ethics,” APLAR Journal of Rheumatology 8, no. 3 (2005): 165–70.CrossRefGoogle Scholar
Furrow, B. R., “Must Physicians Reveal Their Wounds?” Cambridge Quarterly of Healthcare Ethics 5, no. 2 (1996): 204–13.CrossRefGoogle Scholar
Furrow, B. R., “The Changing Role of the Law in Promoting Quality in Health Care: From Sanctioning Outlaws to Managing Outcomes,” Houston Law Review 26, no. 1 (1989): 147–90, at 182.Google Scholar
See Reibl, supra note 1.Google Scholar
Bolam v. Friern Hospital Management Committee, 2 All ER 118 (1957).Google Scholar
Arndt v. Smith, 2. S.C.R. 539 (1997).CrossRefGoogle Scholar
Id., at para. 15.Google Scholar
Kluge, E. H. W., Readings in Biomedical Ethics: A Canadian Focus (Toronto: Pearson Prentice Hall, 2005).Google Scholar
Hopp v. Lepp, 2 SCR 192 208, 112 DLR (3d) 67 85 (1980).Google Scholar
Id., at 210.Google Scholar
Id., at 209–210.Google Scholar
Chester v. Afshar, [2004] UKHL 41 on appeal from: [2002] EWCA Civ 724 (2004).Google Scholar
Id., at para. 86.Google Scholar
Id., at para. 14.Google Scholar
Rogers v. Whitaker, 175 CLR 479 (1992).Google Scholar
Id., at para. 13, the court making reference to the considerations of Chief Justice Leonard King in FvR [1983] 33. S.A.S.R. 189, a case before the Supreme Court of South Australia.Google Scholar
Chappel v. Hart (HC) 195 CLR 232 (1998).Google Scholar
Honoré, T., “Medical Non-Disclosure, Causation and Risk: Chappel v. Hart [(1998) 156 A.L.R. 517],” Torts Law Journal 7, no. 1 (1999): 1–8.Google Scholar
Sher, J., “The Triumph of Logic over Common Sense? A Commentary on Chester v. Afshar,” Medico-Legal Journal 70, Part 4 (2002): 188–90.CrossRefGoogle Scholar
See Chappel, supra note 19, at para. 98.Google Scholar
Halkyard v. Mathew, 231 AR 281 (Qb), Aff 'D (2001), 277 AR 373 (Ca) (1998).Google Scholar
Johnson, B. J., “Recent Decisions: Must Doctors Disclose Their Own Personal Risk Factors? Halkyard v. Mathew,” Health Law Review 10, no. 1 (2001): 18–20.Google Scholar
Heinz, C., “How Much Is Enough? Patients' Right-to-Know v. Privacy Rights of Healthcare Providers,” Healthcare Law and Governance 7, no. 10 (2004): 1–21.Google Scholar
See Furrow, , supra note 4.Google Scholar
Cook, R. J. and Dickens, B. M., “Patient Care and the Health-Impaired Practitioner,” International Journal of Gynecology & Obstetrics 78, no. 2 (2002): 171–77.CrossRefGoogle Scholar
College of Physicians and Surgeons of British Columbia Web site, “Bringing a Complaint to the College,” available at <https://www.cpsbc.ca/cps/patient_resources/complaints> (last visited June 8, 2007).+(last+visited+June+8,+2007).>Google Scholar
Medical Practitioners Act, RSBC 1996, Chapter 285, available at <http://www.qp.gov.bc.ca/statreg/stat/M/96285_1.htm#section63> (last visited June 8, 2007).+(last+visited+June+8,+2007).>Google Scholar
Cohen, G., “When Liposuction Goes Wrong, the Result Can Be Deadly,” U.S. News and World Report, February 21, 2000, at C1.Google Scholar
Berenson, S. K., “Is It Time for Lawyer Profiles?” Fordham Law Review 70, no. 3 (2001): 645–690, at 656–57.Google Scholar
Bouknight, H., “Between the Scalpel and the Lie: Comparing Theories of Physician Accountability for Misrepresentations of Experience and Competence,” Washington and Lee Law Review 60, no. 4 (2003): 1515–60, at 1515.Google Scholar
Wear, S., “Enhancing Clinician Provision of Informed Consent and Counseling: Some Pedagogical Strategies,” Journal of Medicine and Philosophy 24, no. 1 (1999): 34–42.CrossRefGoogle Scholar
Levine, J., “Hold That Scalpel! You Need Thorough Research and Expert Guidance Before You Decide Whether You Should Go Under the Knife,” Money, February 1, 1989: at 31–32.Google Scholar
Clarke, S. and Oakley, J., “Informed Consent and Surgeons' Performance,” Journal of Medicine and Philosophy 29, no. 1 (2004): 11–35.CrossRefGoogle Scholar
Miller, F. H., “Medical Discipline in the Twenty-First Century: Are Purchasers the Answer?” Law and Contemporary Problems 60, no. 1 (1997): 31–58.CrossRefGoogle Scholar
Audet, A.-M. J., Doty, M. M., Shamasdin, J. and Schoenbaum, S. C., “Measure, Learn, and Improve: Physicians' Involvement in Quality Improvement,” Health Affairs 24, no. 3 (2005): 843–53.CrossRefGoogle Scholar
New York State Department of Health Web site, “Adult Cardiac Surgery in New York State,” available at <http://www.health.state.ny.us/nysdoh/heart/heart_disease.htm> (last visited June 24, 2007).+(last+visited+June+24,+2007).>Google Scholar
Pennslyvania Health Care Cost Containment Council, Cardiac Surgery in Pennsylvania, 2005, available at <http://www.phc4.org/reports/cabg/05/docs/cabg2005report.pdf> (last visited June 26, 2007).+(last+visited+June+26,+2007).>Google Scholar
Kluge, E. H. W., “Informed Consent in a Different Key: Physicians' Practice Profiles and the Patient's Right to Know,” Canadian Medical Association Journal 160, no. 9 (1999): 1321–22.Google Scholar
See Reibl, supra note 1, at 890.Google Scholar
Id., at 891.Google Scholar
Hopp v. Lepp, 112 D.L.R. (3d) 67 (S.C.C.) (1980); Turner v. Bederman, O.J. No. 1712 (G.D.) (1996); Kita v. Braig, 17 B. C.A.C. 55 (1992).Google Scholar
Id. (Kita), at para. 7. Before he performed the operation, Dr. Braig, who was 36 at the time and had been in practice as an ear, nose, and throat specialist for just over a year, was asked by Mrs. Kita, a former nurse, whether he had done the recommended procedure before, and answered “Yes.” In fact, he had performed the operation on three previous occasions, but all were while he too was a resident undergoing training in his specialty and under the supervision of a senior surgeon. Counsel for Mrs. Kita characterized Dr. Braig's unqualified answer to Mrs. Kita's question as a misstatement in the nature of a “half truth” made by Dr. Braig for the purpose of procuring consent, and says that it had that result. Counsel says such a consent amounts to no consent at all, and that the conduct of the operation therefore constituted battery, with the result that Dr. Braig was liable for all of its consequences, whether the operation was carried out with appropriate care or not.Google Scholar
See Kita, supra note 43, at para. 12.Google Scholar
Johnson v. Kokemoor, 545 Nw2d 495 (Wis. 1996).Google Scholar
Id.Google Scholar
See Bouknight, , supra note 32.Google Scholar
Iheukwumere, E., “Doctor, Are You Experienced? The Relevance of Disclosure of Physician Experience to a Valid Informed Consent,” Journal of Contemporary Health Law and Policy 18, no. 2 (2002): 373–419.Google Scholar
Whiteside v. Lukson, 947 P. 2d 1263 (Wash. Ct. App. 1997).Google Scholar
Rostolsky, B. M., “Practice Makes Perfect: Experience-Related Information Should Fall within the Purview of Pennsylvania's Doctrine of Informed Consent,” Duquesne Law Review 40, no. 3 (2002): 543–60, at 559.Google Scholar
See Bouknight, , supra note 32.Google Scholar
Howard v. University of Medicine and Dentistry of New Jersey, 300 A.2d 73, 83 (N.J. 2002).Google Scholar
See Halkyard v. Mathew, supra note 23.Google Scholar
See Johnson, , supra note 24.Google Scholar
Rouvelas, I. and Jia, C. et al., “Surgeon Volume and Postoperative Mortality after Oesophagectomy for Cancer,” European Journal of Surgical Oncology 33, no. 2 (2007): 162–168; Rogers, S. O. and Wolf, R. E. et al., “Relation of Surgeon and Hospital Volume to Processes and Outcomes of Colorectal Cancer Surgery,” Annals of Surgery 244, no. 6 (2006): 1003-1011.CrossRefGoogle Scholar
Statement of the American College of Physicians to the House Ways and Means Committee Subcommittee on Health, hearing on “Health Information Technology,” July 27, 2005, available at <http://doctorsforadults.com/hpp/hit_statement.pdf> (last visited June 25, 2007).+(last+visited+June+25,+2007).>Google Scholar
See Johnson, , supra note 24.Google Scholar