A surgeon’s duty to obtain informed consent has two components. The first is disclosure of the material risks of the proposed procedure. The second is disclosure of reasonable alternative treatments. The components are independent. A surgeon can perform the proposed procedure within the standard of care, with the material risks disclosed, and still be liable in negligence for failing to disclose a reasonable alternative that the patient would have chosen.
Khaleel v Indar, 2023 ABKB 547, is a clear illustration. The Court of King’s Bench of Alberta found a general surgeon liable for an informed consent failure even though the surgeon’s choice of procedure was within the standard of care, the procedure itself was performed within the standard of care, and the surgical complication that produced the injury was caused in part by extremely rare patient anatomy. The doctrinal hinge was the surgeon’s failure to disclose laparoscopic surgery as an alternative to open repair, in circumstances where the patient would have chosen the laparoscopic approach if it had been offered.
The case is an Alberta decision, but the substantive law it applies is the framework set out by the Supreme Court of Canada in Reibl v Hughes, [1980] 2 SCR 880, and Hopp v Lepp, [1980] 2 SCR 192. The framework is national. Khaleel is doctrinally relevant in Ontario.
The substantive law
Reibl v Hughes and Hopp v Lepp together establish the framework for informed consent in Canadian medicine.
The duty of disclosure includes:
- The material risks of the proposed procedure (those a reasonable person in the patient’s position would want to know)
- The reasonable alternative treatments (including, where relevant, no treatment at all)
The causation analysis uses the modified objective test: would a reasonable person in the patient’s particular position, having been properly informed, have refused the treatment or chosen an alternative? The standard is “modified” because the patient’s particular circumstances inform the analysis, but the question is asked at a reasonable-person level rather than at the subjective level of what this particular patient would have decided.
The plaintiff bears the burden on causation. The plaintiff must show that the reasonable person would have made a different decision, and that the different decision would have produced a different outcome.
The clinical context
An inguinal hernia is a protrusion of abdominal contents through the inguinal canal in the groin. It is a common surgical condition, and is most often repaired with one of two techniques.
The open Lichtenstein repair involves an incision in the groin, dissection through the layers of the abdominal wall, reduction of the hernia, and reinforcement of the area with a synthetic mesh. It is a long-standing, well-validated procedure that can be performed under local or regional anaesthesia.
The laparoscopic repair uses several small incisions and a camera-and-instrument system to access the hernia from inside the abdomen. It typically allows for shorter recovery, less postoperative pain, and a different complication profile. Not all general surgeons are trained in laparoscopic hernia repair, and the technique requires specialized equipment and training.
Both procedures share the major complications: bleeding, infection, recurrence, numbness, chronic pain, and testicular atrophy (in male patients, where the blood supply to the testicle is disrupted). The risk profiles differ. Laparoscopic repair, in particular, allows the surgeon to dissect through unviolated tissue with better visualization, which can reduce the risk of vascular injury in patients with prior abdominal surgery or scar tissue.
The facts
The plaintiff was a 26-year-old man who had previously had hernia repair as an infant in Jordan. On October 2, 2013, he underwent an open inguinal hernia repair at Fort McMurray Northern Lights Regional Hospital, performed by the defendant general surgeon.
During the surgery, the surgeon encountered significant scar tissue and adhesions from the prior infant repair. He also encountered extremely rare patient anatomy: the testes were fused, and both vas deferens passed through the right inguinal canal. The unusual anatomy made identification of the surgical structures difficult. In dissecting through the layers, the surgeon inadvertently incised what turned out to be the bladder wall. He requested an intraoperative second opinion, which confirmed the bladder injury and the unusual anatomy. The surgeon repaired the bladder and completed the hernia repair with a synthetic mesh.
After the surgery, the plaintiff developed chronic pain. A year later, a urologist diagnosed an atrophic testicle (the right testicle had lost its blood supply and shrunk). The chronic pain continued. In March 2023, the plaintiff underwent an orchiectomy (surgical removal of the right testicle), which substantially reduced the pain.
In October 2013, no general surgeons in Fort McMurray were trained in laparoscopic hernia repair. The plaintiff would have had to be referred to another city for a laparoscopic procedure.
The surgeon did not offer the plaintiff a choice between open and laparoscopic repair. He also did not disclose the risks of chronic pain and testicular atrophy as part of the consent process.
The decision: standard of care
The trial judge addressed the standard of care in three distinct components.
Choice of procedure: standard of care met. The defence expert’s opinion was accepted that an open Lichtenstein repair was within the standard of care for this patient, despite the prior hernia repair as an infant. The earlier surgery had been performed in infancy rather than in adulthood, which meant that the typical contraindications associated with adult re-do surgery did not apply with the same force.
Surgical performance: standard of care met. The plaintiff’s argument that there was a surgical error during the procedure (because the surgeon was dissecting structures he could not identify) was rejected. The trial judge accepted that when the surgeon discovered the unusual anatomy and incised the bladder, he met the standard of care by requesting an intraoperative second opinion, repairing the bladder injury, and then completing the hernia repair.
Informed consent: standard of care not met. The parties agreed on the list of material risks that should have been disclosed: bleeding, infection, numbness, recurrence, chronic pain, and testicular atrophy. The dispute was whether the surgeon had disclosed chronic pain and testicular atrophy. The trial judge accepted the patient’s evidence over the surgeon’s: those risks had not been disclosed.
The trial judge also found that the patient’s hernia was not incarcerated (the bowel was not strangulated, so the surgery was not emergent). Given the non-emergent presentation, the alternatives of laparoscopic surgery and no surgery were both reasonable options that should have been offered. The summary finding, at paragraph 150:
I conclude that Dr. Indar did not meet his duty to inform Mr. Khaleel of all the risks and reasonable alternative options to open hernia repair. He failed to advise him of the risks of chronic pain and testicular atrophy at the time of consent. He failed to advise him of the alternative options of no surgery or laparoscopic surgery.
The decision: causation
The causation analysis applied the modified objective test from Reibl v Hughes.
The trial judge first asked whether a reasonable person, properly informed, would have refused the surgery altogether. The court held no: the hernia was symptomatic and surgical repair was the appropriate course; a reasonable person would have proceeded with surgery.
The trial judge then asked whether a reasonable person would have chosen the alternative — laparoscopic surgery. The court held yes. The fact that laparoscopic surgery would have required a referral to another city did not change the answer. A reasonable person, informed that laparoscopic repair offered a meaningfully reduced risk profile (particularly in a patient with prior hernia repair and significant scar tissue), would have accepted the inconvenience of out-of-town referral to obtain it.
The remaining question was whether laparoscopic repair would have avoided the injury. The court held that it would have. The trial judge found that the atrophic testicle was caused by trauma to the testicular artery during the dissection through the scar tissue (the open approach). In a laparoscopic approach, the surgeon would have been working through unviolated tissue, with better visualization, dissecting from “known to unknown,” and the vascular injury was unlikely to have occurred. The chronic pain was caused by the atrophic testicle (the orchiectomy in 2023 substantially relieved the pain, supporting that conclusion).
The combination produced a finding of negligence. Damages had been settled before trial.
The doctrinal lessons
The case stands for several propositions.
Informed consent has two components, and both are independently actionable. A surgeon can perform the proposed procedure within the standard of care, with the material risks disclosed, and still be liable for failing to disclose a reasonable alternative. The duty to disclose alternatives is doctrinally distinct from the duty to disclose risks.
“Reasonable alternatives” includes alternatives that require referral elsewhere. The fact that the alternative procedure was not available locally did not relieve the surgeon of the duty to disclose it. If a reasonable patient would have accepted the inconvenience of out-of-town referral to obtain the alternative, the alternative was a reasonable one and disclosure was required. This is doctrinally significant for Ontario surgeons in smaller centres or in specialties where particular techniques are concentrated in academic centres.
The modified objective test is a two-stage inquiry. The court asks first whether the reasonable person would have refused the treatment, and then (if that answer is no) whether the reasonable person would have chosen the alternative. Khaleel is a clear example of how the second stage can produce liability where the first does not. The plaintiff does not have to show that they would have refused surgery altogether; they only have to show that they would have made a different choice between options.
The list of material risks is often agreed. In Khaleel, the parties agreed that bleeding, infection, numbness, recurrence, chronic pain, and testicular atrophy were material risks that should have been disclosed. The dispute was whether they had been disclosed. This is a common pattern in informed consent litigation. The contemporaneous documentation of the consent discussion is often the determinative evidence.
The non-emergent presentation matters. The trial judge specifically noted that the hernia was not incarcerated. In an emergent presentation, the analysis of “reasonable alternatives” can be meaningfully constrained. In a non-emergent presentation, the alternatives include no surgery and other procedural options. The patient is entitled to engage with that range.
The Reibl v Hughes framework in Ontario
Khaleel is an Alberta decision, but the framework it applies is national. Reibl v Hughes and Hopp v Lepp are foundational Ontario law. The Ontario application of these cases includes Denman v Radovanovic, in which a multi-disciplinary team’s failure to disclose the cumulative risks of a sequential procedure produced a successful informed consent claim. Khaleel and Denman together illustrate the range of informed consent failures that can attract liability: failures to disclose material risks, failures to disclose reasonable alternatives, and failures to ensure that the cumulative effect of multi-stage decisions is communicated to the patient.
The substantive law in Ontario surgical practice is identical. Ontario surgeons working in smaller centres or with specialized techniques face the same duty: to disclose alternative procedures even where those alternatives require referral elsewhere.
The cross-province case-comment cluster
Khaleel adds to a small but growing collection of out-of-province case comments on this site. The cross-province material is included not because it changes Ontario law but because it illustrates the application of nationally consistent legal frameworks (informed consent, hospital duty of care, surgical standards) in different settings.
- British Columbia: Massie v PHSA (class certification), Sheoran v IHA (hospital duty of care), Gilmore v Love (birth injury and informed consent in real-time labour management)
- Alberta: Khaleel v Indar (this case): informed consent failure for an undisclosed surgical alternative
In each case, the Ontario doctrinal point is bridged in the post. The substantive law is largely common; the procedural posture and the local context provide the variation.
Why this case matters
For patients considering surgery. Informed consent is supposed to include both the material risks of the proposed procedure and the reasonable alternatives. If your surgeon does not discuss alternatives (including doing nothing, or having the procedure done elsewhere), the consent process may be incomplete. The fact that an alternative is not available locally does not mean it does not have to be discussed. If you are considering whether your consent was adequate, the contemporaneous documentation is often the determining evidence.
For physicians. Documentation of the consent discussion is essential. The list of material risks should be discussed and documented. Reasonable alternatives, including alternatives that require referral elsewhere, should be discussed and documented. In non-emergent procedures with multiple options, the conversation with the patient should engage with the choice between those options. Khaleel is a clear illustration that performing the proposed procedure within the standard of care is not sufficient where the consent process did not give the patient a meaningful choice.
For lawyers screening informed consent claims. The two components of the duty (risks and alternatives) are independent. A claim that fails on the risk-disclosure component can still succeed on the alternative-disclosure component, and vice versa. The modified objective test is a two-stage inquiry: would the reasonable person have refused, and would the reasonable person have chosen the alternative? Causation is often the harder question, and the harder analysis is usually whether the alternative would have produced a meaningfully different outcome.
For more on informed consent in surgical contexts, see Surgical Negligence in Ontario: How Liability Is Assessed. For the broader framework of medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: September 29, 2023
Jurisdiction: Court of King’s Bench of Alberta
Citation: Khaleel v Indar, 2023 ABKB 547 (CanLII)
