What You Need to Know – A Doctor’s Duty to Inform

What does a doctor have to tell a patient regarding the risks of a surgery or other medical treatment? Is a doctor who fails to tell his or her patient about such risks still be liable if the patient would have consented to the treatment if he or she had known the risks involved?

?The recent judgment of the Quebec Court of Appeal in Frenette vs. Clement[i] helps to answer these questions.

?The essential facts were neatly summarised by the trial judge:

?“While he had suffered five months earlier from an episode of complicated diverticulitis with micro perforation and formation of an abscess 4.4 cm in diameter, the plaintiff, Mr. Pierre-Luc Frenette, underwent a laparoscopic sigmoidectomy and anastomosis on February 5, 2015. In other words, a portion of the large intestine, called the ‘sigmoid’, was removed using an operative technique without a major skin incision, thus less invasive, and the two ends of the intestine were stapled together.

?Mr. Frenette experienced some pain following this surgery and was found to have a problem with retrograde ejaculation. This means that during ejaculation, the neck of the bladder does not close, so the semen flows back into the bladder instead of being projected outside.

?Mr. Frenette and his spouse, who were planning to have a child since November 2014, sued the defendant, Dr. Julien Clément, general surgeon, accusing him of not having informed them that this surgical procedure, which was elective in Mr. Frenette’s case, could result in this outcome, thus depriving him of giving free and informed consent to the proposed procedure.

?They argue that, despite its frequency of occurrence of around 1% this risk should nevertheless have been disclosed to Mr. Frenette at the pre-operative meeting of January 15, 2015, given his age and the consequences it entails, as well as the lack of urgency to intervene and the availability of a non-surgical option.

?They further allege that the evidence of the surgical experts allows for the presumption that Dr. Clément would have reached, during the surgical procedure, the sympathetic nerves that control ejaculation and the neck of the bladder in one way or another, hence his professional responsibility is also at issue in this regard.

?Mr. Frenette and Ms. Hamel, therefore, claim from Dr. Clément the sum of $453,903.15, including $175,000.00 each in non-pecuniary damages for injury to physical integrity, stress, anxiety, frustration and loss of enjoyment of life.

?Although he does not recall exactly what he told Mr. Frenette and Ms. Hamel at the January 15, 2015 pre-operative meeting, Dr. Clément claims that it is his practice to inform his patient of this risk inherent in this surgery, although it is an infrequent risk.”[ii]

?The Court of Appeal summarized a doctor’s duty to inform as follows:

?“In order to obtain a patient’s free and informed consent to a medical procedure, a physician must fulfill his or her duty to inform, which is a duty of care that is assessed by evaluating the physician’s conduct against the standard of practice then in effect. The information that must be disclosed to the patient includes the reasonably foreseeable risks for the type of procedure involved. In determining which risks should be disclosed, the statistical probability of the risk occurring and the severity of the consequences should be considered.”[iii]

?The Court of Appeal also outlined what a patient must prove in order to win a medical malpractice lawsuit based on a doctor’s alleged failure to secure the patient’s free and informed consent:

?“To succeed in a medical liability action based on a breach of duty to inform, the plaintiff must establish not only fault but also a causal link with the damages claimed. This means determining what the patient would have decided had they been properly informed. The test for causation in such a situation, characterized as being rationally subjective, is ‘to determine and assess, in the light of the nature of the risk and the evidence, what would have been the reasonably probable response of the patient in the case, not of the reasonable man in the abstract. The test is essentially subjective, but because it is normal for the patient to view his or her decision through the prism of what happened following the procedure, the analysis is supplemented by an objective assessment of the circumstances prevailing at the time the decision was made.”[iv]

?On the issue of whether Dr. Clément breached his duty to give Mr. Frenette and Ms. Hamel the requisite information so that Mr. Frenette could give free and informed consent to the operation, the Court of Appeal noted that the risk of a retrograde ejaculation, depending on whose party’s expert was believed, was between less than 1% and 3%. Mr. Frenette’s expert, Dr. Latulippe, testified that “…the risk must…be disclosed to a young, sexually active patient like Mr. Frenette, given the severity of the consequences on his quality of life.” Dr. Clément’s expert, Dr. Arsenault, disagreed and testified that “[i]n his opinion, retrograde ejaculation is extremely rare and, according to current standards of practice, is simply not a risk that should be disclosed. [Dr Arsenault] adds that his opinion is supported by relevant literature, whereas articles cited by Dr. Latulippe either pre-date the era of laparoscopy or are from an oncological context, which is not applicable in this case.”[v]

?The Court of Appeal held that the trial judge was entitled, based on the evidence, to conclude that Dr. Clément was not required by the “standard of practice then in effect” to advise Mr. Frenette of the risk of retrograde ejaculation and its consequences.[vi] The trial judge favoured Dr. Arsenault’s opinion over Dr. Latulippe’s because Dr. Latulippe’s specialty is oncology “… where the type of surgery is performed more aggressively, which increases the risk of secondary consequences such as retrograde ejaculation. [Whereas] Dr. Arsenault’s experience is in general surgery, which is more relevant to the issue at hand.”[vii]

?The trial judge also considered the question of whether Mr. Frenette would have undergone the surgery if he had been advised of the risk of retrograde ejaculation.[viii] Mr. Frenette testified that had he known of the risk of the particular complication from the surgery, he would have not gone ahead with it. He added that he had hoped to avoid surgery, if at all possible.[ix]

?The trial judge did not accept his testimony because he “…considered the risk that, without the intervention, Mr. Frenette would have been exposed to a new attack of diverticulitis more severe than the one he had recently experienced which might have required him to undergo emergency surgery. Among the risks associated with such surgery is the ostomy and, in particular, the risk that Mr. Frenette may be required to wear a colostomy bag temporarily or permanently.” The evidence showed that the risk of Mr. Frenette having to wear a colostomy bag was of particular concern to him and Ms. Hamel. Furthermore, the Superior Court judge also considered the 6 days that Mr. Frenette was hospitalized and the “significant pain he endured.”[x]

?The Court of Appeal concluded that the trial judge’s “… assessment of Mr. Frenette’s testimony is entitled to deference... and therefore did not overturn the finding.” [xi]

?Before the Court of Appeal, Mr. Frenette argued that he trial judge should have found Dr. Clement liable because he “…performed an unnecessary ligation of the superior rectal artery, which would have created nerve trauma causing the condition of retrograde ejaculation. Furthermore, [Mr. Frenette] argue[d] that the [Dr. Clement] admitted this error both in his testimony and in his [approval] of the operating notes” which stated that Dr. Clement had carried out the ligation.[xii]

?For his part, Dr. Clement “…acknowledged that [the ligation of the superior rectal artery] was a possibility, nothing more.” As for the operating notes both experts agreed that the surgical resident who prepared them use the wrong terminology in describing the operation carried out by Dr. Clement.[xiii]

?As both experts, Dr. Latulippe and Dr. Arsenault, opined that the ligation, if it was performed, was not the “likely cause” of Mr. Frenette’s retrograde ejaculation, The Court of Appeal concluded that the trial judge was correct in finding that Dr. Clement did not commit a fault during the operation.[xiv]

?As a result, Mr. Frenette’s and Ms. Hamel’s appeal was dismissed.[xv]

?WHAT YOU NEED TO KNOW

?·??????Doctors are not required to advise their patients of every possible side effect or consequence of surgery or any other medical treatments. They are only required to disclose “… the reasonably foreseeable risks [taking into account] the statistical probability of the risk occurring and the severity of the consequences…”[xvi];

?·??????Even if a doctor wrongly fails to disclose a risk, a doctor will not be found liable for damages as a result if it can be shown that, even if the patient knew the undisclosed risks, he or she would have undergone the surgery or other medical treatment; and

?·??????While operating notes and other parts of a patent’s hospital file are important and can make proof of a patent’s treatments, courts will set aside portions of a patent’s file which are shown to be inaccurate.

?It goes without saying that the preceding comments are general in nature and are not intended to offer any legal advice regarding any specific situation.

[i] 2023 QCCA 109

[ii] Paragraph 2 of the Court of Appeal Judgment citing paras. 1 to 7 of the Superior Court Judgment. (Unless otherwise indicated, all references to paragraph numbers refer to paragraph numbers of the Judgment and all internal footnotes and citations are omitted. All extracts of the Judgment are mechanically translated from the French original to English.)

[iii] Para. 11.

[iv] Para. 19.

[v] Para. 12.

[vi] Paras. 11 & 17.

[vii] Para. 13.

[viii] Para. 18

[ix] Paras. 22 & 23.

[x] Para. 23.

[xi] Para. 25.

[xii] Para. 26.

[xiii] Para. 28.

[xiv] Para. 29.

[xv] Para. 33.

[xvi] Para. 11.