Much has been written about the duty to disclose material risks of advice or procedures that professionals suggest to their patients or clients. These cases usually turn on what risks ought to be disclosed and whether the patient or client would have proceeded with the advice or procedure had these risks been disclosed. However, the Alberta Court of Appeal recently considered a rather unique situation where the suggestion was that a physician ought to have disclosed information about his own physical status.

In Halkyard v Mathew, the plaintiff died from a pulmonary thromboembolism following a hysterectomy that was performed by the defendant gynecologist. The plaintiff, her husband and the administrator of the plaintiff’s estate sued the defendant doctor for negligence and battery.

The trial judge accepted the standard of care evidence presented by the defendant’s expert witness, and found that the defendant had met the standard of care in performing the surgery. It also found that the patient’s death was not caused by the surgery.

Interestingly, however, the plaintiffs also alleged that the physician was negligent by failing to disclose the fact that he suffered from epilepsy. The defendant’s own physicians allowed him to continue practicing, as his medication apparently controlled his epilepsy. Moreover, there was no evidence that the physician suffered an epileptic seizure during the surgery. Nevertheless, the plaintiffs alleged that the physician’s failure to disclose his condition amounted to "battery". The theory was basically that the patient would not have consented to the physician doing the surgery had she known of his condition, and she therefore did not consent to it.

The trial judge rejected this argument, finding that the plaintiff had in fact given her consent for the surgery that the physician performed. Further, there was no evidence that the physician covered up his medical condition in order to obtain the patient’s consent to the surgery, even though he did not disclose it either.

In the course of reviewing the duty of disclosure on physicians, the trial judge noted that much of the case law arises out of whether HIV-infected health professionals need to disclose their health status. The trial judge concluded that the defendant in this case was not obliged to disclose to his patient his personal medical history. The physician had already made disclosure of all of the material risks of the surgery, as well as potential complications, and the patient did consent to those risks. The trial judge held that it was not an issue of informing the patient. Rather, it was the duty of the defendant and his own personal physician, as well as that of the hospital, to determine whether he could continue performing surgery despite having epilepsy.

The Court of Appeal upheld the trial judgment, noting that there was nothing to support the suggestion that the patient would not have consented to the surgery, even had the physician disclosed the fact that he had epilepsy. The plaintiffs themselves suggested that the patient would have consulted another surgeon, but there was nothing to suggest that the complications could have been prevented by someone else.

Importantly, the Court of Appeal also found as a fact that the physician’s condition did not cause the complications that arose from the surgery. The Court of Appeal specifically held that if the harm is caused by the physician’s failure to disclose his condition, then there may be liability. However, the physician’s condition must be linked to the outcome. The Court of Appeal therefore found that doctors do not need to disclose their medical problems, at least not where those problems do not cause harm to their patients.

This is an important decision for any professional who has a medical condition that may, if left untreated, impair their performance. The Court, at least in this case, did not require a professional to disclose a condition that might, if left untreated, otherwise impair his ability to provide adequate services. At the same time, the Court is clearly inferring a high duty on the part of professionals to make sure they do not provide services that they are unable to perform. The Court also infers a duty to disclose to patients or clients any risk that might otherwise prevent a professional from discharging their obligations.

Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.