Recent decisions: must doctors disclose their own personal risk factors? Halkyard v. Mathew.

Halkyard v. Mathew. The Alberta Court of Appeal recently held that a doctor does not have a duty to disclose his/her own medical condition, where there is no causal link between the medical condition and harm to the patient. In Halkyard v. Mathew 2001 ABCA 67, a unanimous panel (McClung, McFadyen and Hunt JJ.A.) dismissed the appeal from the trial judge's dismissal of the plaintiffs' action. The plaintiff had died from a pulmonary thromboembolism following a hysterectomy performed by the defendant gynecologist and obstetrician, as well a subsequent repair procedure by another physician. The plaintiffs, her husband and the administrator of the patient's estate, sued the defendant doctor for negligence and battery, alleging that the doctor negligently performed the surgery and further, failed to obtain the patient's consent by not disclosing he was epileptic. Trial Decision Lewis J. accepted the standard of care evidence presented by the defendant's expert witness, and found the defendant had met the standard of care in performing the surgery: [1998] A.J. No. 986 (Q.B.). It was also found that the patient's death was not caused by the surgeries. The unanimous panel of the Court of Appeal affirmed these findings, refusing to interfere with the trial judge's assessment of the expert evidence. The more interesting aspects of the trial and appeal decisions, however, are the allegations and findings relating to the doctor's failure to disclose to his patient that he suffered from epilepsy. The defendant's own doctors had cleared him to continue practicing, and his medication kept his epilepsy under control. There had been no epileptic seizure in the operating room. The plaintiffs alleged that this non-disclosure amounted to battery, vitiating the consent given for the surgery; alternatively, that it was a negligent non-disclosure. Lewis J. rejected the battery argument. The surgery performed on the patient was the one for which she had given her consent. Further, there was no evidence that the doctor had covered up his medical condition in order to obtain her consent to the surgery, so there was no question of misrepresentation or fraud. Lewis J. addressed the extent and nature of the duty of disclosure on doctors, including an extensive review of American case law and periodical literature, much of which dealt with whether HIV-infected health professionals need disclose their health status. (These are discussed below.) He concluded that the defendant was not obliged to disclose his personal medical history to his patient. The defendant had made disclosure of all the material risks attending the surgery, the risks and potential complications of the procedure, and he thus had obtained the patient's informed consent. The Court considered the policy arguments and consequences of imposing such a duty on doctors, concluding that it was not a question of informing the patient. Rather, it was the duty of the defendant, the defendant's own personal doctor, and that of the hospital to determine whether he could continue performing surgery despite his medical condition. Court of Appeal On appeal, the plaintiffs argued that a failure to disclose a risk (such as the doctor's epilepsy) which could have led the patient to refuse consent was sufficient to vitiate the consent and thus render the doctor liable in battery for any loss arising from surgery, regardless of whether the loss was unrelated to the risk. The plaintiffs also based their negligence argument on a similarly limited theory of causation. They submitted that the cause of the injury was not a relevant consideration when determining whether a failure to disclose was negligent. Rather, they reasoned that if the patient would not have consented to the surgery if she had been informed of the doctor's medical condition, causation was proven. The Memorandum of Judgment issued by the panel (McClung, McFadyen and Hunt JJA) noted that on the evidence at trial, there was nothing to support the contention that the patient would not have consented to the surgery, even if disclosure had been made. …

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