All surgeries carry with them some degree of risk. Not every surgery or medical procedure is going to be successful, and the fact is that some patients unfortunately are going to be worse off after surgery than they were before, possibly not through the fault of the doctor and even if their doctor provides the best possible care.
If you have had a bad outcome after a medical procedure, you may be thinking about a medical malpractice claim, especially if the consequence of that procedure or that surgery wasn’t discussed with you as a possible risk beforehand. The law in Canada is that all doctors have to have informed consent before performing a medical procedure like a surgery. This means that all material risks have to be fully explained to the patient and to be fully understood by that patient. If one of these risks wasn’t explained to you beforehand and if that risk materializes afterwards, then you may have a valid medical malpractice claim on the basis of a lack of informed consent. Understand that this is different than medical negligence. A lack of informed consent can be successful even if the doctor treated you perfectly in all other respects.
The wrong was by not getting your consent in the first place. But the analysis doesn’t start and end simply by asking whether the risk was disclosed. Even if a risk wasn’t adequately disclosed, you will only be successful in an informed consent claim if you can establish a second factor: that a normal patient in the same shoes as you would not have consented even had the risk been disclosed. So the analysis is twofold. First, was the risk of injury explained to you? And second, would a reasonable patient in your shoes have nonetheless consented regardless of that risk? If you’ve been injured through medical treatment for which you did not provide informed consent, if you have questions about your rights, I’d be pleased to chat with you at no cost, so please don’t hesitate to call.
