Does a Physician owe a patient a duty of care to disclose medical errors?
Typically, where a physician has participated in the care of a patient, a duty of care arises.4 The duty of care is wide reaching and includes a duty to disclose any medical errors or adverse events that occur while treating the patient (Stamos v. Davies (1986), 21 D.L.R. (4th) 507 (H.C.J) “Stamos”). This duty stems from the fiduciary nature of the physician-patient relationship. The physician-patient relationship is one based on trust – the trust of a patient (with inferior knowledge and power) in their physician (with superior power and responsibility) – that their physician will exercise that power in the patient’s best interests, and only in the patient’s best interest (McInerney v. MacDonald (1990), 66 D.L.R. (4th) 736). Physicians accordingly have an obligation to act with utmost good faith and loyalty to their patients, and must not allow their own personal interests to conflict with their professional duty.
In other words, fear of getting sued is not a valid reason to withold information from a patient. Further, the duty is a continuing one, meaning it extends to circumstances where the patient is no longer under the care of the responsible physician at the time the medical error is discovered (Vasdani v. Sehmi, [1993] O.J. No. 44, “Vasdani). The duty to disclose is also a positive one which applies regardless of whether or not the patient asks any questions about what happened.5
It is also worth noting that in addition to this legal duty, a physician also has an ethical duty to act in the patient’s best interests. This entails a clear obligation on the part of the physician to, “disclose to the patient if there is a risk of harm or if harm has occurred.”6
What is the Standard of Care?
Having established that a duty of care exists on the part of a physician to disclose a medical error to a patient, the next step is determining what is required in order for the physician to meet this duty – in other words, what is the required standard of care? How much information is a physician required to disclose? Is it sufficient for a physician to acknowledge the poor outcome and offer an apology or must the physician describe, in detail, what went wrong and why? Must the physician go so far as to admit that they breached the standard of care?
To put the physician’s duty to disclose medical errors into proper context, it is useful to consider a physician’s obligations of disclosure to the patient prior to the medical treatment. It is clear that prior to medical treatment, a physician has an obligation to disclose to the patient all of the risks which a reasonable person in the position of the patient would want to know, the benefits of the proposed medical treatment, as well as the alternatives, and to do so in plain language that the patient can understand.7 This standard of disclosure goes well beyond the more limited paternalistic approach to disclosure which existed prior to the seminal Supreme Court of Canada decisions in Hopp v. Lepp (1980), 112 D.L.R. (3d) 67 (SCC) and Reibl v. Hughes (1980), 114 D.L.R. (3d) 1 (SCC) and is now firmly grounded in the notion of patient autonomy.
If a physician has an obligation to advise a patient of all potential risks arising from the proposed medical treatment which the reasonable person in the position of the patient would want to know, then it follows that the same standard of disclosure applies with respect to what actually occurred during the medical treatment. There is no principled reason why it should not.
Therefore, in determining whether or not a physician has met his or her duty to disclose a medical error or harm which may have occurred during medical treatment, one should broadly ask, “what would the reasonable person in the position of the patient want to know?” Viewed from this perspective, it is clear that the standard of disclosure extends beyond an apology or mere expression of regret. It requires the physician to tell the patient in factual terms what harm, or potential harm may have occurred during the procedure. It requires a level of candor and specificity.
