The fact that the error has been corrected, and disclosure would not affect future medical care, does not relieve a physician of his or her obligation to disclose the error. For example, in Shobridge v. Thomas, 1999 CanLII 5986 (BCSC) “Shobridge”, the defendant surgeon failed to inform the plaintiff that the source of her abdominal infection was an abdominal roll which he had unknowingly left in her abdominal cavity during an earlier surgery. He simply advised the plaintiff that he thought he may have “fixed the problem”. One of the defendant surgeon’s explanations for failing to disclose the retained abdominal roll was that, having removed the abdominal roll during the subsequent surgery, “the cause of the problem had been removed; the physical damage had been done; and failing to inform [her treating physicians] did not compromise her treatment”. The court rejected this rationale. Further, the fact that the error has been noted in the patient’s medical record or disclosed in the context of a hospital quality assurance review also does not meet the standard of disclosure required as this does not ensure disclosure to the patient. (note s. 51 of the Evidence Act [RSBC 1996] chpt 124 protects certain information from disclosure to the patient.)
A physician also has a duty to disclose errors or adverse events which occur in the absence of negligence. For example, in Emmonds v. Makarewicz, 2000 BCCA 573 (CanLII) “Emmonds”, the defendant surgeon accidentally caused a large number of gallstones to spill into the plaintiff’s abdominal cavity during removal of her gallbladder. The court found the spillage of the gallstones was not negligent, nor was the decision to leave some of them in the abdominal cavity. However, the court found the defendant was negligent in failing to inform the plaintiff of retained gallstones.
It is also important to consider that a physician’s failure to disclose a medical error which occurred during the first surgery may vitiate the consent obtained for a subsequent, or corrective surgery performed by the same physician, on the basis that the patient did not did not provide informed consent to the subsequent surgery (Gerula v. Flores, [1995] OJ No. 2300 (CA) “Gerula”).
While the standard of disclosure is broad, it has thus far been limited to disclosing factual information, and has not been extended to require the physician to express an opinion regarding whether or not he or she was negligent in the treatment provided (Fehr v Immaculata Hospital, [1999] A.J. No. 1317).
Did the Breach of the Standard of Care Cause an Injury?
A physician’s failure to disclose a medical error does not, on its own, result in legal liability for damages. In order to be successful in establishing liability in negligence, an injury must have arisen and there must be a causal connection between the breach of the standard of care and the injury which the plaintiff has suffered.
For example, in Stamos, the defendant physician accidentally punctured the plaintiff’s spleen during a lung biopsy and failed to disclose this medical error to him following the procedure. The Plaintiff was discharged home, only to return the following day in significant pain. The patient underwent surgery, during which a significant amount of blood was found in the patient’s abdomen and his spleen was removed. The court found that while the defendant owed a duty of care to the plaintiff to disclose the accidental injury to his spleen, and that his limited explanation of what occurred during the lung biopsy fell below the standard of disclosure required, this breach of the standard of care did not lead to liability because it did not cause an injury. The court found that plaintiff’s pain and the need for the removal of his spleen were caused by the initial intra-operative injury and not by the failure to disclose it and resultant delay in repair surgery.
On the other hand, in Emmonds, the failure to disclose the spillage of gallstones into the plaintiff abdomen was found to be a breach of the physician’s duty of disclosure which the court found did cause an injury – namely, an additional three years of misery for the plaintiff as it delayed surgical revision and reinforced the view amongst the plaintiff’s medical team that her complaints of pain were all in her head. Accordingly, liability was found and damages awarded.
