Reibl v. Hughes
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Reibl v. Hughes [1980] 2 S.C.R. 880 is a leading decision of the Supreme Court of Canada on negligence, medical malpractice, informed consent, the duty to warn, and causation.
The case settled the issue of when a doctor may be sued for (battery) and when it is more appropriate to sue the doctor in negligence. The Court wrote unanimously that "unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery."
[edit] Causation
It is a general principle in tort law that a defendant is not liable for damages unless their negligence was the cause of the injury to the plaintiff.
In the context of a medical malpractice claim where it is alleged the doctor failed to inform the patient of a risk, the doctor will not be held liable if the patient would have had the procedure anyway (even if they knew of the risk).
Reibl v. Hughes the Supreme Court outlined a "modified objective test" for causation in medical malpractice. It is a well-settled point of Canadian negligence law that whether a doctor's failure to disclose information caused the injury cannot be sustained if the patient would have had the operation anyway.
Consider this example: your doctor knows that a surgery has a 5% chance of causing complete paralysis but does not tell you. Without the operation, however, you will very likely die within 12 months.
The court looked at two approaches: an objective test ("what would a reasonable person do in the circumstances?") and a subjective ("what would this plaintiff have done?"). There was concern that an objective test favors the doctor while a subjective test favors the plaintiff.
In an objective test, the Court would accept medical evidence that the chance of paralysis was 5% and the chance of death was high. A reasonable person, thinking rationally, would take the risk of paralysis over death.
If it were a subjective test, the Court would ask the plaintiff. Logically, the plaintiff, who is paralysed will say "no." Logically, if the plaintiff said they would have had the operation anyway, they would not be suing the doctor.
In Reibl, The Court created a "modified objective test" which starts with the "reasonable person" and adds some of the characteristics of the plaintff, such as age, sex, and family circumstances but will not allow "irrational beliefs" to be taken into account.
The test was endorsed 8-1 in Ardnt v. Smith, [1997] 2 S.C.R. 539.
