What is the test for determining whether a material risk in a medical malpractice case is material risk?
New Brunswick, Canada
The following excerpt is from Kitchen v. McMullen, 1989 CanLII 218 (NB CA):
It has been held that the question whether a particular risk is a material risk and whether there has been a breach of the duty of disclosure are matters for the trier of fact: see Videto v. Kennedy, per Howland C. J.O. at p. 134. Since the trial judge did not address these issues in his decision, it is my opinion that this court should do so.
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