A recent decision of the New South Wales Supreme Court provides
some guidance on the extent to which a medical practitioner ought
to provide specific and detailed warnings to a patient prior to
treatment or surgery.
Dr Kam, the second defendant, is a neurosurgeon. On 22 November
2004 he performed spinal surgery on the plaintiff who alleged that
as a result of this procedure he sustained temporary paralysis and
required a further corrective procedure. The plaintiff's
condition had completely resolved by trial.
The plaintiff claimed that Dr Kam failed to properly warn him
that there were a number of risks associated with the procedure,
which could have adverse consequences. It was accepted that Dr Kam
had given a general warning and had informed the plaintiff that the
procedure had a 70% to 75% chance of success. Dr Kam had also
informed the plaintiff that he should lose weight before undergoing
The plaintiff's case was that Dr Kam's warning was
inadequate to the extent that it did not warn of particular dangers
associated with the plaintiff's obesity. The plaintiff also
claimed that no warning was given of the specific risk of temporary
paralysis. Dr Kam conceded that he had not warned the plaintiff of
The plaintiff alleged that had he been warned of these risks, he
would not have undergone the procedure.
There was no allegation that Dr Kam had performed the procedure
The New South Wales Supreme Court was required to consider three
Did Dr Kam breach his duty of care to the plaintiff by failing
to give a proper warning of the risks of the surgery?
Did the plaintiff suffer harm?
If he did, was that harm caused by Dr Kam's
Decision – New South Wales Supreme Court
The Court held that Dr Kam's warning to the plaintiff should
have included a specific warning about the risk of temporary
paralysis, particularly given the plaintiff's obesity. This
would have been a reasonable and proper recognition of the need to
tailor the preoperative explanation to a patient, as opposed to the
giving of a general warning.
The Court also held that although the plaintiff's condition
was not permanent, the fact that the plaintiff had suffered harm
was sufficient to complete the cause of action. This was
particularly so given that a second operation was required to
correct the plaintiff's condition.
On the matter of causation the Court held that the plaintiff
would not have declined surgery even if warned of the particular
risk that materialised. The plaintiff's evidence was that he
was in desperate need of pain relief prior to the procedure, could
hardly walk and was having suicidal thoughts due to the pain. The
Court considered that the plaintiff would not have declined the
surgery where there was a 70% to 75% chance of some relief, and the
only relevant risk to him was a mere temporary loss of power and
sensation in his lower limbs of the nature and extent of the
condition that in fact materialised.
Consequently, it was held that Dr Kam's failure to warn of
the particular risk that materialised was a breach of his duty of
care to the plaintiff but was not causative of the plaintiff's
loss or injury, there being no suggestion that the procedure itself
was negligently performed.
Judgment was entered for Dr Kam with costs.
Although Dr Kam successfully defended this claim on the basis of
causation, the judgment reinforces the real risk of exposure to
damages claims if medical practitioners do not provide patient
specific warnings pre-operatively.
The decision highlights some useful guidelines for medical
practitioners and other health care providers:
It should not be assumed that a warning about a particular risk
is inherent in a general warning;
Warnings should incorporate the particular dangers associated
with the patient's individual characteristics;
The likelihood of the particular risk materialising and the
extent and degree to which it might affect the patient should be
drawn to the patient's attention; and
All relevant information that explains the danger confronting
the patient and its potential consequences should be described in a
way that allows the patient to attach significance to the risk.
Plain English should be used and, where possible, the risk should
be described by way of a comparison to allow the patient to
appreciate the relative risk.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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