Dimitra Dubrow, Melbourne
Many of us are aware that medical procedures and treatment have risks and don't always result in the desired outcome. But what is the responsibility of a hospital or doctor to outline those risks and in how much detail?
Duty to warn is clear in law
The law is very clear that a doctor has a duty to warn a patient about the potential risks of a procedure or treatment they are about to undergo so patients can make informed medical decisions.
In the now famous case of Rogers v Whitaker dating back to 1992, the High Court of Australia said that a doctor had a duty to warn a patient of a "material" risk and this was one where:
"A reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it."
Wrongs Act 1958
There is legislation which deals with the duty to warn. In Victoria, the Wrongs Act 1958 states that where a person is obliged to give a warning or information about a risk, they will satisfy their duty of care if they take 'reasonable care' in providing that information. The information about risks which a doctor is to provide needs to be meaningful. It would not be enough for a consent form listing the risks to be given to a patient just before a procedure. An actual discussion needs to occur with the patient where the risks are discussed and a patient can ask questions freely.
Of course, in an emergency situation, it will not be possible for such advice to be given nor should life saving surgery be delayed for this to occur. Conversely, the more elective and discretionary the procedure is, the greater the responsibility on the doctor to provide information about risks. The circumstances of each case are of great relevance.
Courts in Australia have found doctors negligent in cases where there has been a failure to provide advice about a risk; that risk has then eventuated and the patient has been able to establish that they would not have had the treatment if they had been properly advised and were aware of the risk.
In the case of Rogers mentioned above, the patient was blind in her right eye and had surgery to gain some improvement in her vision. The surgery was performed competently but unfortunately she went on to develop a complication called sympathetic ophthalmia which resulted in her also losing vision in her good left eye. The High Court found that the surgeon was negligent in not warning the patient of the risk that the vision in the good eye could be affected by the surgery even though the risk was exceedingly rare. The court accepted the patient's evidence that she would not have undergone the surgery if warned of the risk.
Negligent matters in different states
In the 2009 Victorian case of Hookey v Paterno, the court found that the surgeon had failed to adequately warn the patient of the risks associated with orthognathic surgery for correction of malocclusion. In particular, the surgeon had not warned the patient of the risk of permanent nerve damage based on her age and smoking history. The judge said that the surgeon had a duty to provide advice about that risk with "…sufficient detail and simplicity to be comprehensible".
In other cases, the courts have not accepted that the patient would not have had the treatment if told of the risk. This occurred in the High Court decision of Rosenberg v Percival, where the court did not accept that the patient would not have had oral surgery if told of the risk of temporomandibular joint dysfunction. It was of relevance that the patient was a nurse herself and had knowledge of medical risks, had a serious jaw problem which required treatment, and had pre-operatively expressed a desire to achieve the best result.
What a patient would have done had they been properly warned is hotly contested in these cases. Not a lot of emphasis is put on what the patient themselves has to say about it, as this is said to be tainted with the benefit of hindsight. Instead, the surrounding circumstances are looked at, such as those looked at by the High Court in Rosenberg. In New South Wales, Queensland, Tasmania and Western Australia, the patient's own statements about what they would have done are not accepted in Court unless they go 'against' them.
In a recent NSW case of Wallace v Ramsay Health Care Ltd, the court made it clear that there needed to be a link between the risk which the doctor failed to give advice about and the one that eventuated. It is not enough for a patient to say they were not told about a more serious risk and this would have led them not to have the surgery.
In Victoria under the Wrongs Act 1958, a person bringing a claim based on a 'failure to warn' needs to prove that they were not aware of the risk or information. In other words, they need to show that they were not aware of the risk from other sources, such as the internet or being advised by another doctor.
Fortunately, because of the developments of the law, many patients are now better informed about relevant risks and doctors have become acutely aware of their obligation to provide patients with meaningful advice about risks. However, patients need to continue to be proactive and ask their doctor to take the time to discuss the risks of all the available treatment options for their condition.
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