Modified Objective Test for Informed Consent - Medical Malpractice

The Court of Appeal in a recent decision examined the legal test to determine whether a patient who sues her doctor had informed consent of the risks of the treatment \ surgery. The issue is whether the patient \ Plaintiff would have proceeded with the surgery had she been properly informed of the risks and whether her evidence on this point is inherently unreliable by being influenced by the hindsight knowledge of the adverse outcome. The Court of Appeal reaffirmed the modified objective test as set out by the Supreme Court of Canada in Arndt v. Smith, as this would protect against the danger of a purely subjective test. As the Supreme Court said in Arndt v. Smith, a purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made. The modified objective test would be inherently more reliable in this regard. Todd K. Plant, 613-563-1131, Ottawa Personal Injury Lawyers, Plant Quinn Thiele LLP, www.pqtlaw.com