Does a surgeon have a duty to disclose to the patient all material risks attending the surgery?

Alberta, Canada


The following excerpt is from Keller v. Penkoske, 1999 ABQB 912 (CanLII):

In Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880,114 D.L.R. (3d) 1 Laskin C.J., who delivered the judgment of the court, stated at D.L.R. p. 5: It is now undoubted that the relationship between surgeon and patient gives rise to a duty of the surgeon to make disclosure to the patient of what I would call all material risks attending the surgery which is recommended. The scope of the duty of disclosure was considered in Hopp v. Lepp [1980 CanLII 14 (SCC), [1980] 2 S.C.R. 192] at p. 210, where it was generalized as follows: In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case. The Court in Hopp v. Lepp, supra, also pointed out that even if a certain risk is a mere possibility which ordinarily need not be disclosed, yet if its occurrence carries serious consequences, as for example, paralysis or even death, it should be regarded as a material risk requiring disclosure.

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