When assessing the gravity of the risk of an infection in an operating theatre, is the risk material?

Alberta, Canada


The following excerpt is from Zimmer v. Ringrose, 1981 ABCA 60 (CanLII):

In addition to considering the gravity of the risk, the question "whether [the] risk is or is not quite remote" must also be taken into account (see Hopp v. Lepp at p. 17). The risk of infection, for example, although ever present in surgery, is generally "quite remote". The mere fact that the consequences of an infection are serious, does not of itself make the risk material.

Finally, as observed by the Chief Justice in Reibl v. Hughes certain patients, owing to emotional factors, may be unable to cope with information bearing upon their decision whether to undergo the surgery or treatment. In these circumstances the doctor "may be justified in withholding or generalizing information as to which he would otherwise be required to be more specific."

Generally speaking, a doctor is obliged to disclose to the patient all material risks inherent in the proposed surgery or treatment (Hopp v. Lepp). Material risks encompass not only probable and special or unusual risks, but also risks which the doctor knows or ought to know would likely influence the patient's decision whether to submit to the prescribed treatment. Information requested by a patient will normally provide the doctor with some guidance as to those matters which the patient considers relevant and should therefore be discussed. With a view to revealing any probable or special risks involved, the physician or surgeon should also discuss the benefits to be gained from the recommended treatment or operation, the advantages and disadvantages associated with alternative procedures and the consequences of foregoing treatment. Such a discussion is essential since a patient cannot measure risks in the abstract. To discharge his duty of care, the doctor must give the patient some yardstick against which he can assess the options available to him.

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