Reibl v. Hughes
Supreme Court of Canada
Argued June 5, 1980 Decided October 7, 1980
Full case name: John Reibl v. Robert A. Hughes Citations: [1980] 2 S.C.R. 880 Prior history:
Holding
In order to obtain medical consent, physicians must provide the patient with enough information so that an objective, reasonable person in the patient's position could make an informed decision.
Court membership
Chief Justice Bora Laskin Bora Laskin Bora Laskin, PC, CC, FRSC was a Canadian jurist, who served on the Supreme Court of Canada for fourteen years, including a decade as its Chief Justice.-Early life:... Puisne Justices Ronald Martland Ronald Martland Ronald Martland, CC, QC, AOE was a Canadian Justice of the Supreme Court of Canada.Born in Liverpool, England, he was the second Albertan ever to be appointed to the Supreme Court of Canada. Justice Martland attended the University of Alberta and obtained a B.A. in 1926 and an LL.B in 1928... , Julien Chouinard Julien Chouinard Julien Chouinard, was a Canadian lawyer, civil servant and Puisne Justice of the Supreme Court of Canada.... , Jean Beetz Jean Beetz Jean-Marie Philémon Joseph Beetz, was a Canadian jurist and puisne justice of the Supreme Court of Canada.... , Willard Estey Willard Estey Willard Zebedee "Bud" Estey, was a Canadian justice of the Supreme Court of Canada.Estey was born in Saskatoon, Saskatchewan. He was the son of James Wilfred Estey, a puisne justice of the Supreme Court of Canada, and Muriel Baldwin. He studied at the University of Saskatchewan earning a BA in... , William McIntyre William McIntyre William Rogers McIntyre, CC was a Canadian Puisne Justice of the Supreme Court of Canada.Born in Lachine, Quebec, the son of Charles Sidney McIntyre and Pauline May Sifton, he moved with his family to Moose Jaw, Saskatchewan when he was young. In 1939, he received a Bachelor of Arts degree from... , and Brian Dickson Brian Dickson Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
Case opinions
Unanimous decision by: The Court

Reibl v. Hughes [1980] 2 S.C.R. 880 is a leading decision of the Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 on negligence, medical malpractice, informed consent

Informed consent

Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...

, the duty to warn, and causation.

The case settled the issue of when a physician may be sued for battery

Battery (crime)

Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...

 and when it is more appropriate to sue the doctor in negligence. The Court wrote unanimously that "unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery." The case also marked the creation of a standard whereby a physician must give the patient sufficient information so that an objective, reasonable person in the patient's position would be able to make an informed choice about a medical procedure.

Background

Robert A. Hughes, a physician, was in the process of competently performing an endarterectomy

Endarterectomy

Endarterectomy is a surgical procedure to remove the atheromatous plaque material, or blockage, in the lining of an artery constricted by the buildup of soft/hardening deposits. It is carried out by separating the plaque from the arterial wall....

 on his patient, John Reibl, when Reibl suffered a massive stroke. Paralysis and impotence resulted. Reibl alleged that he had not truly given informed consent, and as such the surgery constituted battery. Although Reibl was aware that the surgery was not without risks, he felt that Hughes had implied that the risks of not having the surgery were greater. Reibl was a eighteen months away from obtaining a lifetime pension, and the stroke prevented him from earning that pension. He stated that if he had been aware of the risks in the surgery, he would have waited the year and a half to earn his pension before undergoing the procedure, even if it meant a shortened life.

In the original trial, Reibl was awarded monetary damages for negligence and battery, irrespective of his having signed a formal consent form. On appeal to the Ontario Court of Appeal

Ontario Court of Appeal

The Court of Appeal for Ontario is headquartered in downtown Toronto, in historic Osgoode Hall....

, the court directed that a new trial be held, but that the charge of battery be disallowed from the new proceedings.

Ruling

It is a general principle in tort law

Tort

A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 that a defendant is not liable for damages unless their negligence was the cause of the injury to the plaintiff.

In the context of a medical malpractice

Medical malpractice

Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and...

claim where it is alleged the doctor failed to inform the patient of a risk, the doctor will not be held liable if the patient would have had the procedure anyway (even if they knew of the risk).

Reibl v. Hughes the Supreme Court outlined a "modified objective test" for causation in medical malpractice. It is well-established in Canadian law that a doctor cannot be sued for not disclosing information if the patient would have consented to the operation irrespective of whether or not the information was disclosed.

Consider this example: your doctor knows that a surgery has a 5% chance of causing complete paralysis but does not tell you. Without the operation, however, you will very likely die within 12 months.

The court looked at two approaches: an objective test ("what would a reasonable person do?") and a subjective ("what would this plaintiff have done?"). There was concern that an objective test favors the doctor while a subjective test favors the plaintiff.

In an objective test, the Court would accept medical evidence that the chance of paralysis was 5% and the chance of death was high. A reasonable person, thinking rationally, would take the risk of paralysis over death.

If it were a subjective test, the Court would ask the plaintiff. Logically, the plaintiff, who is paralysed will say "no." Logically, if the plaintiff said they would have had the operation anyway, they would not be suing the doctor.

In Reibl, The Court created a "modified objective test" which starts with the "reasonable person" and adds some of the characteristics of the plaintiff, such as age, sex, and family circumstances but will not allow "irrational beliefs" to be taken into account.

The test has been frequently used to determine many medical malpractice and negligence cases, including Arndt v. Smith.