What factors must be considered in a medical malpractice case when determining whether a patient is entitled to a full pension as a result of the disclosure provided by the surgeon?

New Brunswick, Canada


The following excerpt is from Mason v. Forgie, 1986 CanLII 3928 (NB CA):

That the special concerns and circumstances of the particular patient must be factored into the objective test is illustrated by the remarks of Laskin C.J.C. in Reibl v. Hughes, supra, at p. 16 D.L.R., pp. 898-9 S.C.R.: I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material. And so too are any special considerations affecting the particular patient. For example, the patient may have asked specific questions which were either brushed aside or were not fully answered or were answered wrongly. In the present case, the anticipation of a full pension would be a special consideration, and, while it would have to be viewed objectively, it emerges from the patient's particular circumstances. So too, other aspects of the objective standard would have to be geared to what the average prudent person, the reasonable person in the patient's particular position, would agree to or not agree to, if all material and special risks of going ahead with the surgery or foregoing it were made known to him. Far from making the patient's own testimony irrelevant, it is essential to his case that he put his own position forward.

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