Health professionals know the drill. You need the patient to sign the consent form before proceeding with a treatment or procedure. But what is often forgotten is that a signature alone is not sufficient. Informed consent – the kind required by law – is not just a form, but a process. It means explaining to the patient the risks, benefits, and alternatives to the proposed treatment or procedure. It means giving the patient an opportunity to ask questions, and answering those questions. Health professionals who fail to obtain informed consent face liability if something goes wrong.
Informed consent lawsuits can arise where a procedure performed was not consented to or where a material risk was not disclosed in advance. These liability issues are distinct from whether the health professional was otherwise competent.
In 1980 the Supreme Court of Canada outlined the test to determine whether a health professional has properly obtained informed consent.
The first part of the test is based on what a particular patient would have agreed to knowing all the risks. The patient must demonstrate that the material risks and/or alternatives were not adequately disclosed and, had they been, that the patient would not have consented.
The second part of the test asks what a reasonable person in circumstances similar to the patient would have decided if properly informed.
Disclosure of Potential Fertility Loss
There are instances where the proposed treatment has such a remote chance of affecting a patient’s fertility that even where the patient is rendered infertile, it can be found that the patient gave informed consent. More commonly, however, the risk of infertility is more than remote, and failing to disclose such risk will result in a finding that the health professional failed to obtain informed consent. The greater the risk to fertility and the greater the desire the patient expresses in wanting to preserve fertility, the more likely a failure to disclose associated risks will result in a health professional having to pay a substantial damage award to the patient.
In a recent case in Ontario a patient agreed to a procedure to have uterine fibroids removed. She also was hoping to reduce pain and bleeding. The patient expressed a strong desire to have a child in the future. During the surgery, the defendant doctor noted that the source of the patient’s pain was not fibroids, but a condition called adenomyosis. The treatment for this condition was to remove the patient’s uterus, which the doctor did. At trial, the doctor’s defence was that he had discussed the risk of requiring a hysterectomy with the patient prior to the procedure and that she had agreed to this risk. The patient, on the other hand, stated that she would never have agreed to a hysterectomy because she was hoping to become pregnant. The court agreed with the patient’s claim, that her doctor had only outlined the risk of an emergency hysterectomy and not an optional one to alleviate her symptoms. As such, the court decided that the patient had not given informed consent and awarded her $75,000.
In 2006 a patient underwent a procedure to alleviate swelling and discomfort in his testicle. The patient’s epididymis was severed during the procedure. The result of the damage left him infertile. The patient sued, but the Quebec court decided in the doctor’s favour:
[T]he risk of infertility was so remote that it did not need to be mentioned…furthermore, the Court believes that [the patient] would have requested the operation even if he had known that infertility was a risk, because this risk was extremely remote and because it is obvious that he badly wanted this operation.
The patient failed to meet both parts of the test for informed consent.
In 2000 an Alberta doctor was found liable for failing to inform his patient of a material risk associated with surgery. Prior to the operation, the patient attended a seminar by a registered nurse intended to address the risks associated with the gastroplasty revision surgery, but additional information was not provided based on the patient’s personal circumstances. During the surgery there was a leak of gastric contents into the patient’s abdomen leading to severe peritonitis. As a result of this infection, the patient became infertile. The court found that the patient had not given informed consent; a reasonable person in her situation would not have proceeded with the revision surgery had she been properly informed of the risk of infection (especially where alternatives were available).
Of particular note was how the court addressed the issue of awarding damages for infertility:
It is an invidious task for any judge to try to quantify the value of loss of fertility. The Court can only do its best in evaluating this very subjective type of loss. I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering, and loss of amenities. Those categories cover losses which, in my view, are of a different nature and quality than the loss of the ability to bear children or to achieve the family one has planned. And while pain and suffering can, of course, encompass more than just somatic distress, such as the psychological loss a woman made infertile may suffer, I nevertheless prefer… to assess quantum for infertility discretely, by reference to the circumstances of each case.
The patient was awarded $170,000 with $70,000.00 specifically designated for her loss of fertility.
In another case a patient’s IUD was never properly removed and left her infertile; she was awarded $75,000 for her involuntary infertility.
An award for loss of fertility must be assessed on a case-by-case basis, and will depend entirely on the facts of each case.
So how does this affect a health professional treating a patient for cancer? Clearly, where infertility is a known risk, it ought to be disclosed to a patient. Where a patient expresses interest in having a child in the future, disclosure becomes even more important. But even when the risk of fertility loss is quite low or the patient does not mention an interest in children, disclosure of the risk is in everyone’s interests: the patient gets the fullest opportunity to make an informed decision and health professionals minimize their liability should something go wrong.
Lisa Feldstein is the principal lawyer at Lisa Feldstein Law Office Professional Corporation. She holds a B.A. from the University of Guelph and a J.D. from Osgoode Hall Law School. Lisa practices in the area of Family Health Law(tm). Lisa has been teaching negotiation at Osgoode Hall Law School since 2010 and sits as director on the board of BALANCE for Blind Adults.
Alissa Goldberg is a lawyer practicing in Toronto, Ontario. She holds a B.A. from Queen’s University, a Masters of Health Administration from Dalhousie University and a J.D. from the Schulich School of Law, Dalhousie University. Alissa’s professional areas of interest include commercial and civil litigation, and health law. Alissa previously articled with a boutique civil litigation firm in Toronto.