What is relevant but not determinative in determining the materiality of a procedure?
British Columbia, Canada
The following excerpt is from Parhar v Weaver, 2021 BCSC 123 (CanLII):
In considering the materiality of a particular risk, expert medical evidence is relevant but not determinative. This is because, while relevant, expert medical evidence taken on its own could “hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty”. Expert evidence is relevant in identifying the risks associated with a particular procedure. It will also have “a bearing” on the “materiality” of the risks, “but this is not a question that is to be concluded on the basis of the expert medical evidence alone”. Materiality of risk is ultimately a question to be determined by the trier of fact: Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 [Reibl] at p. 894-895.
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