Court of Appeal Clarifies Duty to Obtain Informed Consent in Multi-Step Treatment

A recent decision of the Ontario Court of Appeal reminds physicians of their duties when providing treatment as part of a multi-step treatment plan as part of a team. A physician who is a member of a multi-disciplinary team may have a duty to obtain informed consent for procedures that they are not performing.

Background

A multi-disciplinary team treated Mr. Denman for arteriovenous malformation (“AVM”). Dr ter Brugge (a diagnostic radiologist) and Dr. Radovanovic (a neurosurgeon) were members of this team. Their treatment plan consisted of a “multi-step course of elective procedures”, including a series of embolization procedures followed by a possible microsurgical resection of the AVM.

Before the first procedure, Dr. ter Brugge advised Mr. Denman of the risks associated with a single embolization. The court found, however, that he failed to inform Mr. Denman of (i) the risks of no treatment and (ii) the likelihood of requiring further treatments. Ultimately, Mr. Denman consented, and Dr. Pereira (a neuroradiologist and neurosurgeon) performed the embolization. The procedure was unsuccessful; only a complete embolization of his AVM would have reduced Mr. Denman’s risk of spontaneous bleed.

The second procedure was another embolization performed by Dr. Pereira. Notably, an informed consent discussion did not occur before this procedure.

The third procedure combined an embolization and microsurgical resection. Dr. Pereira testified that he advised that the combined procedure carried a 3 to 5% risk of serious complications, whereas no treatment carried a 2 to 4% annual risk and 50 to 60% lifetime risk of rupture. However, Mrs. Denman testified that Dr. Pereira and Dr. Radovanovic said the combined procedure carried a 2% risk of serious complications, whereas no treatment carried a 4% risk of rupture compounding annually. Ultimately, Mr. Denman consented to the treatment, and Dr. Pereira performed the third embolization. Mr. Denman suffered from complications that led to an emergency surgery and, ultimately, left him paralyzed on one side of his body.

Court of Appeal Decision

Upholding the finding of the Superior Court of Justice in this matter, the Ontario Court of Appeal found that the physicians did not obtain Mr. Denman’s informed consent for the procedures, and that if they had provided adequate disclosure, a reasonable person in his situation would not have undergone the combined procedure if the physicians had adequately disclosed the risks.

1. The Duty to Obtain Informed Consent for Multi-Step Course of Elective Procedures

A physician has a duty to obtain informed consent for a “multi-step course of elective procedures.” Informed consent requires a physician to adequately disclose information about a proposed treatment and any risks. A physician may disclose other treatment options depending on the patient’s situation. If there is more than one option, a physician must compare the risks and benefits of those treatments.  

The Court of Appeal found that Dr. ter Brugge informed Mr. Denman of the risks associated with a single embolization rather than multiple, even though he was aware that the first embolization alone was unlikely to be sufficient. Furthermore, he failed to disclose the risks of not undergoing the proposed treatment. Dr. ter Brugge also led Mr. Denman to a website that inaccurately reported the risks associated with an embolization.

Dr. Radovanovic and Dr. Pereira’s risk assessment of the combined procedure was “misleading and inaccurate” (para 117). A “reasonable range of risks” should have been disclosed (para 64); namely, the treatment carried a 30 to 50% immediate risk of neurological complications, whereas no treatment carried a 40 to 60% lifetime risk of rupture. If they had provided adequate disclosure, neither Mr. Denman nor a reasonable person in his circumstances would have undergone the combined procedure.

2. The Duty of Multi-Disciplinary Team Members to Obtain Informed Consent

Whether a physician has a duty to disclose adequate information about a procedure they are not performing depends on the context: a physician may be liable if they provided the inadequate disclosure that caused the patient to undergo the procedure that resulted in the harm.

The Court of Appeal held that Dr. ter Brugge had this duty because he was advising Mr. Denman of the risks associated with the treatment options, on behalf of the multi-disciplinary team. His inadequate disclosure caused Mr. Denman to consent to the treatment plan and, ultimately, to undergo the third embolization that resulted in injury. Similarly, Dr. Radovanovic provided inadequate disclosure about the combined procedure that caused Mr. Denman to undergo the third embolization. As such, the Court found both physicians liable. These physicians would not have been liable if an informed consent conversation occurred before the third embolization.

Key Takeaways

Multi-disciplinary teams are increasingly providing patient care in hospital settings. Accordingly, physicians must be aware of their corresponding and potentially overlapping duties. Physicians may have a duty to obtain informed consent for procedures that they are not performing. To obtain informed consent, the physician must adequately disclose information about the risks associated with and without the proposed treatment. An informed consent discussion should take place before each treatment in a multi-step course of treatments.

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