There is a clear and now well known legal duty to advise patients of all material risks associated with proposed treatment and to obtain informed consent. But is there equally a legal duty to disclose error or injury which has occurred in the course of treatment? One Australian case has directly dealt with this issue.
Non-disclosure of error
In Wighton v Arnot  NSWSC 637, the plaintiff developed a neck abscess and underwent a right sided radical neck dissection. During the operation, the accessory nerve was severed but the surgeon did not advise the patient of his suspicion that this had occurred, did not test for it and did not refer the patient to a specialist. By the time the patient attended a neurosurgeon for ongoing right shoulder pain and the accessory nerve injury was diagnosed, it was too late for remedial surgery.
The performance of the operation and the severance of the accessory nerve itself was not alleged to be negligent and was not the subject of the case. The issue was whether the surgeon had departed from reasonable care in failing to disclose and investigate the suspected injury, and provide an opportunity for any remedial surgery. The court held that there had been such a departure.
Duty to disclose
In finding that a duty to disclose existed, it was relevant that the disclosure impacted on the medical outcome, that is the ability to undergo repair surgery. Justice Studdert said:
"What the exercise of due care required of the defendant was that he take reasonable steps to determine whether it was the accessory nerve which had been severed, and that he alert the plaintiff as to what had occurred."
Justice Studdert went further, stating that at the time of discharge even if it was not known that it was the accessory nerve which had been severed, the plaintiff had a "right to know" that the surgeon had severed a nerve which was suspected to be the accessory nerve.
Therefore, a recognised duty to disclose injury and errors and the courts will readily find such a duty particularly in cases where disclosure and knowledge impacts on future remedial treatment.