Does Failure to Disclose a Medical Error Amount to Liability?

The Verdict – Issue 170 / Fall 2021

This is the final article in our 8-part series on medical malpractice litigation published in the Verdict law journal. In this article Susanne Raab reviews the physicians’ obligation to disclose to their patients when a medical error occurs in the provision of their health care, and also examines the consequences that flow from a failure to make these required disclosures.

This is the final part of our 8-part series on the anatomy of a medical negligence claim within which we review the following topics:

• The Doctor-Patient Relationship and Duty of Care (the Verdict Issue 163 – Winter 2019)
• Consent (the Verdict Issue 164 – Spring 2020)
• Standard of Care (the Verdict Issue 165 – Summer 2020)
• Defences to Standard of Care (the Verdict Issue 166 – Fall 2020)
• Causation – Basic Principles (the Verdict Issue 167 – Winter 2020)
• Causation – Application (the Verdict Issue 168 – Spring 2021)
• Expert Evidence (the Verdict Issue 169 Summer 2021)
• Disclosure of Errors

Introduction

In this series we have reviewed the law as it relates to a health care provider’s duty of care to their patient as well as an analysis of the standard of care required of health care providers and the various defences available. We have delved into the murky waters of causation – which, while recently clarified by the Supreme Court of Canada remains confounded by the rapid pace of medical and technological advances. At the heart of it all is the patient and the court’s increasing recognition of patient autonomy and the importance of informed consent. We reviewed the standard of disclosure required as well as the unique causation issues that arise in the context of claims based in lack of informed consent. Finally, in recognition of the critical role of expert evidence in proving medical negligence claims, we reviewed the common law and statutory rules relating to the admissibility of expert evidence.

We conclude this series with a topic that looms in the background of all medical malpractice cases – and that is the physician’s duty of disclosure to their patient when things go wrong.¹ When medical errors occur in the provision of health care, physicians have an obligation, both legally and ethically, to disclose such errors to their patients.2
But all too often this does not occur, and the cause of a patient’s poor outcome following surgery or other medical treatment remains unknown until it is discovered by a subsequent healthcare provider, or more commonly, until it is uncovered through the process of litigation.

The purpose of this article is to examine the physician’s duty to disclose medical errors when they occur, and to examine the consequences that flow from a physician’s failure to make adequate disclosure.

As with any claim based in negligence, to be successful a plaintiff must meet four requirements:

1. The defendant must owe the plaintiff a duty of care;
2. The defendant must breach the standard of care;
3. The plaintiff must suffer an injury or loss; and
4. The defendant’s conduct must have been the actual and legal cause of the plaintiff’s injury.³