Australia: Failure to warn: Monument v Baker

The Facts

On 30 September 1997 at the St John of God Hospital in Murdoch, the plaintiff underwent surgery which involved drainage of a lump on the right side of his neck, and the removal of lymph nodes for a biopsy. The plaintiff claims that his accessory nerve was damaged as a consequence of the procedure, and that he has suffered, and continues to suffer, disability to his right shoulder.

It was accepted that the surgeon, Dr Baker, gave no advice to the plaintiff on alternatives to surgery.

The plaintiff did not allege that Dr Baker negligently performed the operation but rather, that Dr Baker failed to give adequate advice to the plaintiff of the alternative treatments available, or of the possible risks associated with the surgery.

The Decision

The issues considered at trial were the nature of the duty and standard of care of a surgeon giving advice to a patient prior to surgery, whether Dr Baker breached this duty of care, and if so, whether that breach was causative of the plaintiff's alleged injury.

In relation to the standard of care of a surgeon, the court relied on the established principles from Rogers v Whitaker (1992) 175 CLR 479 as well as F v R (1983) 33 SASR 189. Those cases provide that a medical practitioner owes a duty to exercise reasonable care and skill in the provision of professional advice and treatment. A doctor also has a duty to warn a patient of a material risk inherent in the proposed treatment.

Dr Baker argued that the procedure he recommended and performed on the plaintiff was the only reasonable and sensible option. The plaintiff had suggested a number of theoretical alternative treatments including no treatment, continued use of oral antibiotics, intravenous antibiotics or small incision biopsy. In particular the plaintiff argued that a small incision biopsy would have identified that the lump was not an abscess and some other treatment might have been undertaken. This argument was rejected on the basis of the medical evidence and the fact that the abscess had different segments and therefore a small incision biopsy was not practical or thorough enough. The court therefore concluded that the operative treatment undertaken by Dr Baker was the only reasonable and viable treatment available in the circumstances.

In terms of whether Dr Baker gave sufficient information to the plaintiff on other options, the court held that Dr Baker was under no obligation to advise the plaintiff of theoretical treatment options that were not reasonable and viable. The court also went so far as to say that to have presented such options would have been inappropriate.

The next issue the court considered was whether Dr Baker adequately warned the plaintiff of the risk of damage to the accessory nerve. The plaintiff gave evidence that Dr Baker told him the abscess was cancerous and needed to be removed, and denied being told that there were any risks to the blood vessels or nerves in the neck as a result of the surgery. The plaintiff also denied that Dr Baker explained to him that the abscess had to be drained and a lymph node removed for biopsy. The plaintiff further alleged that he thought the consent form he signed was related to the fact that the operation was being performed under general anaesthetic. At odds with the plaintiff's evidence was his girlfriend's recollection. She gave evidence that she recalled Dr Baker telling the plaintiff that the abscess had to be drained and a lymph node removed for biopsy.

Dr Baker had no independent recollection of what discussion took place with the plaintiff. He did not take any notes of the advice he gave. He believed he gave advice to the plaintiff based upon the consent form signed by the patient which was, he said, his usual practice.

The court found that, on the balance of probabilities, it was likely that Dr Baker gave the plaintiff a warning about the possible risks involved in the operation. The court based this finding on the fact that Dr Baker is an experienced surgeon and the giving of such a warning was his usual practice. The expert witnesses also suggested that an experienced surgeon such as Dr Baker would give such a warning.

The court discussed causation and the plaintiff's claim that if he had been advised of the risk to the accessory nerve and how it might affect his shoulder, he would not have undertaken the operation. That evidence was not accepted. The court formed the view that a person in the plaintiff's position on 30 September 1997 would not have declined to proceed with an operation when he was advised that there was a risk of the lump being an abscess and infection spreading to his brain, and that there was also a risk that the lump was cancerous. The court found that to have refused to undertake the operative treatment recommended by Dr Baker would have been extremely reckless.

The plaintiff's claim was dismissed.

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