** Plaintiff contracted chickenpox when she was pregnant
** Defendant doctor did not fully advise her about the risk to her fetus
** Plaintiff gave birth to daughter with congenital defects
** Plaintiff sued the physician for costs associated with rearing her daughter
** Even if she was warned of the risks, plaintiff would not have aborted the child.
** Evaluated her testimony at trial that should would have aborted, with evidence that she desired a child, was sceptical of mainstream medical intervention and that an abortion in the second trimester held increased risks
** No causation: Loss was not caused by doctor’s failure to advise property of risk
** Trial applied wrong test and ordered a new trial
Was the loss caused by the doctor’s failure to advise property of risk?
** What is the appropriate test of causation?
Determining causation in cases of medical risk and a duty to inform requires an application of the modified objective test
** Courts should consider what the reasonable patient in the plaintiff’s circumstances would have done if faced with the same situation
** Court should apply the “modified objective test” set out in Reibl v Hughes: The court should consider what the reasonable patient in the plaintiff’s circumstances would have done if face with the same situation (must consider any particular concerns of the patient; and any special considerations affecting the particular patient in determining whether the patient would have refused treatment if given all information)
** Problem with subjective test: Can’t use subjective test because the plaintiff will always testify that the failure to warn was the determining factor in their decision to take a harmful cause of action
** Problem with objective test: Might result in undue emphasis on medical evidence (a test that defers completely to medical wisdom – can it be reasonable refused?)
** Can infer from the evidence that a reasonable person in plaintiff’s position would not have terminated pregnancy
** Failure to disclose did not affect the plaintiff’s decision to continue pregnancy; and therefore did not cause financial losses
2. McLachlin (concurring)
** Trial judge must look at all evidence to determine what course of action the plaintiff would have taken
** Trial judge used the right test (subjective test): Considered what the plaintiff said she would do; and then considered all external circumstances
** Also information about what the medical profession would have recommended is relevant and supports trial judge’s decision
** Why the subjective test? It is a factual, not hypothetical inquiry. E.g. if person gets hit by car and breaks leg, we do not ask whether a reasonable person would have broken their leg, but whether that particular individual would have. Also, other jurisdictions have adopted the subjective approach.
** Important question on selecting a test: whether it treats the plaintiff unfairly by diminishing her right to choose
*** Is the test fair to both the plaintiff and the defendant
*** Should not determine causation solely on physician’s opinion, nor on plaintiff’s unilateral assertion at trial
*** Must let trial judge weigh all evidence (up to physician to introduce evidence about what a reasonable patient would have done)
3. Dissent (Sopinka, Iacobucci)
** Appropriate test is the subjective test -- But the trial judge applied objective test about what a reasonable and prudent expectant mother would have time; or failed to specify which test was applied; or failed to consider plaintiff’s testimony. So, a new trial should be ordered for any of these reasons
** Function of objective evidence is to test the reliability of the plaintiff’s assertion as to what her conduct would have been if properly warned (plaintiff’s evidence is crucial)
** Using objective test, trial judge did not consider plaintiff’s testimony
Appeal allowed. Decision in favour of defendant.