How have courts applied the risk/benefit test in a medical malpractice case?

Ontario, Canada


The following excerpt is from Mickle v. Salvation Army Grace Hospital, 1998 CanLII 14934 (ON SC):

I feel compelled at this point to say that the application of this test in a case such as this is an extremely difficult task. In a conventional Reibl v. Hughes case, a court is asked whether a reasonable patient in the circumstances of the plaintiff would elect a form of treatment, balancing the prospect of cure or improved health against the risks of a worsened condition. Such a case is not free from difficulty, but at least the risk/benefit balance pertains to the same person. In a case such as the one before me, the balance is between the burdens both financial and emotional that may be imposed on the mother and the continued life of the unborn child—a far different comparison. In a conventional case one is able to proceed on the basis of common values. Everyone wishes to improve his or her health and at the same time fears the risk of further damage or deterioration. Balancing the odds of success against the chance of failure is not an unfamiliar exercise.

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