The modified objective test is the causation framework that Ontario courts apply in informed consent cases. It was established by the Supreme Court of Canada in Reibl v Hughes, [1980] 2 SCR 880, where the Court rejected both a purely subjective test (what would this particular plaintiff have done?) and a purely objective test (what would the reasonable person have done?) in favour of a hybrid: what would a reasonable person in the plaintiff’s particular circumstances have done, had the risks of the proposed treatment been properly disclosed?
The “modification” of the objective test is the part that attends to the plaintiff’s circumstances. A reasonable thirty-five-year-old construction worker with three children to support may make a different decision than a reasonable seventy-five-year-old retiree with significant comorbidities, and the test invites the court to consider those individual circumstances rather than collapsing every plaintiff into a notional reasonable person.
In practice, the modified objective test is more favourable to defendants than a purely subjective test would be, because the plaintiff’s post-hoc evidence that they personally would have refused the treatment carries less weight against the objective question of what a reasonable patient would have done. The test has been refined in subsequent cases, including the Supreme Court of Canada’s decision in Arndt v Smith, [1997] 2 SCR 539, which addressed how to incorporate the plaintiff’s particular fears or concerns into the analysis.
Posts tagged Modified Objective Test analyze Ontario decisions on causation in informed consent claims.
A 17-day birth injury trial. Battery, informed consent, five negligence allegations, and causation all addressed and rejected. A multi-ground defence dismissal.
The Ontario Court of Appeal affirmed liability against three physicians for failure to disclose the cumulative risks of a multi-step brain AVM treatment plan.
A self-represented plaintiff’s negligence and informed consent claims against an OBGYN were dismissed on summary judgment for lack of expert evidence.
On December 1, 2023, the Ontario Superior Court of Justice dismissed a medical malpractice lawsuit brought by a young woman who suffered a stroke after taking birth control medication provided by her family physician who allegedly failed to advise her of the increased risk of stroke associated with that particular brand of birth control pill (Yaz).
A surgeon was found liable for failing to disclose laparoscopic hernia repair as an alternative, even though the open repair he performed met the standard of care.
Free, confidential consultations. Paul reviews every potential case personally and tells you honestly whether it merits investigation.