What is the legal test for a medical malpractice claim based on a lack of informed consent?
Ontario, Canada
The following excerpt is from Brown v. Baum, 2015 ONSC 849 (CanLII):
It has been held that two distinct issues must be determined in a claim based on an allegation of a lack of informed consent (Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880; Turkington v. Lai, 2007 CanLII 48993 (ON S.C.J.) at paras. 41, 45): (a) Did the doctor fulfill his duty of disclosure, that is, did the doctor disclose the material, special or unusual risks that a reasonable person in the patient’s position would want to know; (b) If the material information had been disclosed would a reasonable person in the patient’s position have declined the treatment?
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