A medical practitioner's duty to warn their patient of the risks associated with a procedure is well known in the medical field and is supported by a clear and consistent line of authority. Despite this, a common feature of medical malpractice is miscommunication with the patient.
The decision of Justice Harrison in Wallace v Ramsay Health Care (Wallace) serves as a reminder to medical practitioners that to sufficiently discharge their duty, a warning about the risks associated with a procedure must be tailored to the patient and communicated to them in a way that they understand.
The plaintiff in Wallace cast a wide net of allegations against the hospital (where he was admitted for treatment) and against Dr Kam (the defendant), who rendered the treatment. By the time the matter was heard Dr Kam remained the only defendant. The Supreme Court of New South Wales found that the defendant breached his duty of care by failing to issue a specific warning. However, the defendant was not found liable in negligence because the plaintiff failed to establish causation.
The plaintiff was suffering from severe back pain that he was desperate to overcome. The plaintiff sought assistance from many practitioners and tried many other treatments before consulting with the defendant.
The defendant diagnosed the plaintiff as having an intervertebral disc protrusion in his lumbar spine. The plaintiff had several consultations with the defendant, in which the defendant gave advice, including advice that he should lose weight. The plaintiff was obese and it was hoped that a reduction in body weight might result in a reduction in back pain.
The plaintiff tried to reduce his weight, and was partly successful. At one stage the plaintiff had reduced his weight from 124kgs to 110kgs, however, this did not reduce his pain. His back pain became so severe that he became bed-ridden. Due to the ongoing pain and immobility, and the unlikelihood of the plaintiff losing any more weight, the defendant recommended the plaintiff undergo immediate surgery. The surgery recommended was a posterior lumbar interbody fusion.
The defendant provided the plaintiff with general advice as to the risks associated with surgery and posterior lumbar interbody fusion. The plaintiff elected to undergo the surgery.
A posterior lumbar interbody fusion is major surgery, which usually takes four hours to complete. For reasons including the plaintiff's obesity, the surgery took six hours, which put a lot of stress on the plaintiff's body.
Upon regaining consciousness post operatively, the plaintiff found he was suffering extreme pain and his legs were paralysed. The plaintiff underwent an emergency MRI and further surgery the following morning to diagnose the cause of his extreme pain and paralysis. The cause of the pain and paralysis could not be found. Ultimately the plaintiff was diagnosed with bilateral femoral neurapraxia, a temporary condition caused by prolonged pressure (on account of the extended duration of the surgery) on the femoral nerves.
The plaintiff alleged that the defendant failed to properly warn him that the surgery involved a number of risks with the possibility of adverse consequences; specifically, that there was an additional risk of bilateral femoral neurapraxia due to the prolonged duration of the surgery.
To determine the defendant's liability, Justice Harrison considered whether the elements of negligence had been established, specifically whether:
- the defendant breached his duty by failing to warn of the material risks of the surgery he performed;
- the plaintiff suffered harm in the circumstances; and
- if the plaintiff suffered harm, whether the harm was caused by the defendant's breach.
Whether the defendant breached his duty
The first issue was whether the defendant breached his duty to adequately warn the patient.
The plaintiff contended that the defendant's warning was inadequate or insufficient, as he did not warn him of the particular dangers associated with the plaintiff's weight, especially the fact that the operation time would be extended because of it, and the risk of a catastrophic outcome.
The plaintiff's position was that he could not give 'informed consent' without being informed of all of the inherent risks and potential consequences of the operation and an explanation of which risks and potential consequences could not be avoided, even by the exercise of reasonable care and skill. Bilateral femoral neurapraxia was one such consequence that the defendant failed to bring to his attention. The plaintiff also contended that he should have been, and was not, warned that his condition following the surgery could be worse than if he had no surgery at all.
The defendant's position was that he gave his usual warning to the plaintiff and that it was adequate in the circumstances.
The parties disputed the content of the warning given. However, there was no dispute as to whether the defendant warned about the risk of bilateral femoral neurapraxia. The defendant admitted that he did not warn the plaintiff of this risk. However, counsel on the defendant's behalf, relying on s 5B(1)(c) of the Civil Liability Act 2002 (NSW) (the Act), submitted a reasonable person in the defendant's position would not have warned about this risk because the probability and likely seriousness of harm was minimal. Significantly, both medical experts, called by the parties respectively, gave evidence that they would not have warned about bilateral femoral neurapraxia for these reasons.
When determining whether a failure to warn of bilateral femoral neurapraxia amounted to a breach of duty, Justice Harrison had regard to the findings by the High Court in Rogers v Whitaker that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment, and that a risk is material if in the circumstances a reasonable person in the patient's position would be likely to attach significance to it if warned of that risk.
On the question of determining the risk that ought to be the subject of a warning, his Honour cited the High Court decision in Rosenberg v Percival, which stated that the duty to warn a patient of a material risk inherent in the proposed treatment led to further questions to be addressed:
Although the risk was held to be inherent in the procedure, Justice Harrison made clear that s 5I of the Act did not apply in the circumstances. Under this section, these is an exclusion of liability in negligence for harm suffered as a result of the materialisation of an inherent risk: s 5I(1). The operation of s 5P of the Act prevents s 5I from applying to a duty to warn of a risk as part of a professional service.
Applying a subjective test (which is established law in Australia in relation to warnings) Justice Harrison found that the risk was one that the plaintiff would have attached significance to (given his pain and debility leading up to the surgery) and was therefore one which was material and one in respect of which a warning ought to have been given. Justice Harrison found that a warning to the plaintiff should have included a specific warning about femoral neurapraxia and a failure to issue such a warning amounted to a breach of duty on the part of the defendant.
Whether the plaintiff suffered an injury
Justice Harrison found, on the balance of probabilities, the plaintiff sustained bilateral femoral neurapraxia during the first operative procedure and his post operative symptomatology was a consequence of this.
Counsel on behalf of the defendant argued that the injury was too small to be handled by the court. Justice Harrison was not persuaded by this argument. While Justice Harrison also found that the injury was only temporary and by the time of judgment it had completely resolved, the fact that the plaintiff had suffered harm was sufficient to complete the cause of action.
Whether the defendant's breach of duty caused the harm
The test for causation is set out in section 5D(1) of the Act. It is a twofold test, establishing factual causation and scope of liability. So in order to establish that the negligence caused the harm, the plaintiff had to establish that the negligence was a necessary condition of the occurrence of the harm, and it was appropriate for the scope of the defendant's liability to extend to the harm caused.
To determine whether the defendant's negligence in fact caused the harm, Justice Harrison considered what the plaintiff would have done if the defendant had not breached his duty. That is, what the plaintiff would have done if the defendant had warned him about the risk of femoral neurapraxia. Section 5D(3) of the Act provides that such a determination is to be subjective, in light of all the relevant circumstances and any statement made by the plaintiff about what he would have done is inadmissible, except to the extent that such a statement is against the plaintiff's interests.
When determining this question, Justice Harrison took into account the following matters:
- pre-operatively the plaintiff was in extreme pain and had exhausted all his options except major surgery in trying to resolve the pain;
- although the plaintiff was experiencing difficulty with his mobility, prior to the surgery he was largely immobile due to his obesity; and
- the plaintiff was not worse off than he was before the operation (when he was confined to his bedroom); in fact, his condition had improved to the extent that he could move about with a walking frame.
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. It was determined 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.
Justice Harrison held that the plaintiff would have undertaken the surgery even if warned of the particular risk that materialised; therefore the negligence was not a necessary condition of the harm. Having found that that factual causation was not established, it was not necessary to consider the question of scope of liability.
Justice Harrison accepted that the defendant medical practitioner had failed to properly warn the defendant of the risks of the procedure and of the increased possibility of adverse consequences due to the plaintiff's obesity. However, because the plaintiff would have elected to have the surgery irrespective of the risks associated with it, the negligence allegation against the defendant was dismissed because causation was not made out.
Lessons from Wallace
Warnings must be specific to the particular patient
The practitioner should not assume that a warning about a particular risk is inherent in a general warning. Justice Harrison made it clear that a medical practitioner will breach his/her duty if the warning is not tailored to the circumstances of the patient.
Specifically address risks relevant to the individual characteristics of the patient, the likelihood of a particular risk materialising and the extent and degree to which it might affect the patient.
Provide warnings in terms that the patient can readily understand
Patients are in a vulnerable position when they consult a medical practitioner. This case demonstrates why it is important that the practitioner ensures the patient understands the proposed procedure and the materials risks associated with it.
The practitioner must ensure that the patient fully understands the nature and extent of the risks and potential outcomes of the treatment. This may be done by asking the patient to confirm his/her understanding of these risks.
Document warnings provided
In Wallace there was a dispute as to the nature of the general warning. Generally a medical practitioner will rely on his or her 'usual procedure' when recalling the warning that was given. There is a risk that the court might find that the 'usual procedure' was not adhered to. The risk of this occurring will generally be reduced if documentary evidence can be provided of the warning that was given. This can be achieved by providing the warning to the patient, both orally and in writing. General warnings lend themselves to being documented because they tend to be the same with each patient. This means that the documented general warning can form part of the patient's medical record, annotated with the specific warnings given.
 See Rogers v Whitaker (1992) 175 CLR 479; 67 ALJR 47; 109 ALR 625; Tai v Saxon (unreported, WASC, Pidgeon, Franklyn and Ipp JJ, 23 of 1995, 8 February 1996); Rosenberg v Percival (2001) 205 CLR 434; 75 ALJR 734; 178 ALR 577; ss5H, 5I, 5O and 5P Civil Liability Act 2002 (NSW).
 Wallace v Ramsay Health Care  NSWSC 518 (9 July 2010).
  HCA 58; (1992) 175CLR 479 at 490 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.
  HCA 18; (2001) 205 CLR 434 at - per Gleeson J.
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This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.