Informed consent to medical procedures

The law requires doctors to advise a patient about all risks which are material to a person in the patient's situation. But to make a successful claim, the patient must show that he or she would not have had the procedure if properly warned about the risks.

Common medical consent claims about failure to warn about risks of the procedure have been made in the following circumstances:

  • bile duct injury (and other injuries) during laparoscopic cholecystectomy
  • changes in sensation following breast surgery
  • injuries following urinary tract surgery
  • unimproved or worse vision following eye surgery, and
  • scarring following change in pigmentation of the skin after laser treatment to the face.

Sometimes a procedure will be performed without any consent. There are some circumstances, such as in an emergency or under mental health legislation, where this may be acceptable. In other situations, a person may be able to make a compensation claim for assault.

FAQs about informed consent to medical procedures

How do I make a claim?

If you think you have a medical negligence claim, contact the Maurice Blackburn Medical Negligence team. We will take a statement from you about what has occurred and then provide you with a preliminary assessment. If we believe you should proceed further with your claim, we will then carry out an investigation of your case. An investigation will involve obtaining your medical records and reports from your treating doctors, if appropriate, then obtaining an independent medical expert's opinion.

How much will it cost?

In medical negligence cases that we believe have merit, we will conduct the investigation on a "No win - No charge" basis. This means you will only be charged profit costs in the event you receive an award of damages and no profit costs will be charged if the claim is not pursued after being investigated.

If proceedings are issued after investigating the claim and the claim is successful, you will be charged for the costs of the investigation and the legal work performed after issuing proceedings. This will be a charge on the appropriate Court Scale, and you will be given more information about this at the time when the decision is made to issue proceedings. No costs are charged unless you receive a settlement or award of compensation.

However, in medical negligence cases, we require you to pay for the costs of the investigations, such as the fees charged by doctors for providing us with medical reports or by hospitals for providing us with medical records. We have to obtain these reports and records before we can advise you whether you are likely to be successful with your medical negligence case.

If, after carrying out the investigation, we believe that you should proceed with a claim, then we can offer you various remedies for obtaining compensation. If the medical treatment has resulted in an unexpected death, then we may recommend that a report be made to the Coroner's Court. Sometimes we also advise that a report should be made to the Health Care Complaints Commission of New South Wales, the Health Services Commissioner of Victoria or the Health Rights Commission of Queensland.

How long do I have to make a claim?

There are time limits for making a compensation claim. The time limits and pre-litigation requirements vary between States and Territories.

Australian Capital Territory

In the ACT pre-court procedures require a claimant to notify a potential defendant of a possible claim within the earlier of  9 months of the incident or appearance of symptoms or 4 months of instructing a lawyer regarding a possible claim and the defendant being identified.   Generally, a person has three years from the time of the injury occuring or if the injury is a disease or disorder three years before the day you first knew that you suffered an injury that is a disease or disorder and that the injury is related to someone else's act or omissions, to bring a claim.  If  they are a child, there is provision to extend the time to bring a claim if it involves a disease or disorder.   If Court proceedings are not commenced within within the relevant time period you may be prevented from ever bringing a claim.  Legal advice is therefore essential.

Victoria

In Victoria a person has three years from the time of injury or medical negligence was (discoverable) to issue proceedings.  The concept of (discoverability) is yet to be fully defined by the Courts and accordingly it is prudent to be conservative when judging the date of discoverability to have occurred, for example where the negligent treatment involves an injury as a result of surgery undertaken in a negligent fashion, a conservative assessment as to the date of injury would be the date the surgery was undertaken, even where the negligence was not discovered by the Claimant until some time thereafter. The position will vary from case-to-case and you should obtain legal advice about the time limits in your case.