Duty of Care
Duty to Disclose Mistakes
A doctor who makes an error in the course of treatment is under a legal duty to disclose this fact to the patient.
The error must be something that a reasonable person in the patient's position would wish to know.
An example of this is Stamos v Davies where the spleen was punctured in the course of a lung biopsy and the patient was not informed. Justice Krever at the trial ruled that the surgeon had a legal duty to advise the patient what had happened and was negligent in failing to do so. He viewed the duty to disclose mistakes as part of the doctrine of informed consent.
Later cases have held that the duty to disclose medical mistakes is also grounded in the fiduciary nature of the doctor-patient relationship.
In some cases the failure to disclose a mistake will not cause any harm and so no damages will be awarded for the breach in duty.
In others there may be substantial awards.
Kiley-Nikkel v Danais
Surgeon performed a mastectomy on a patient after the pathologist had mistakenly diagnosed cancer. The patient was not informed and only found out six years later that she did not have cancer. It was held that the surgeon should have told the patient about the mistake and because of his failure to do so, she endured six years of anxiety.
Gerula v Flores
A surgeon had to do a second operation and did not tell the patient that he had to do the second operation because of the mistakes he made in the first. The court held that this was intentional misrepresentation and this made the physician liable for battery.
