Failure by medical practitioners to provide patients with information on risks based on up to date published medical literature AND to take into account the circumstances of each patient and their ability to comprehend such information exposes a medical practitioner to a risk of malpractice claims and damage to reputation.
Doctors duty to provide information ' Duty to warn
Medical practitioners have always had a legitimate concern about the extent to which the law imposes an obligation on them to warn patients of the risk involved in a particular procedure or treatment. In Queensland some certainty has been provided by the Civil Liability Act 2002 (Qld) and provisions dealing with the proactive and reactive duties of doctors to warn of risks. But what need (and need not) be said can still be difficult to identify. A recent decision of the Supreme Court of South Australia has provided some guidance on what medical practitioners ought to do when discussing risks with a patient.
G, PA and C, P v Down Supreme Court of South Australia (28 July 2009)
G was a mother of four who decided in late 2001 that her future plans did not include having more children. She wanted to investigate having her 'tubes tied'. G had been on some form of contraceptive pill for 16 years.
G consulted her GP in October 2001 and was referred to Dr Down who she discussed tubal ligation surgery with on 12 December 2001. At that consultation Dr Down conveyed the following information to G:-
- The methodology of the surgery with reference to a formal diagram of the female reproductive system and his own hand drawn diagrams.
- The surgical plan.
- The risk of G becoming pregnant being '1 in 2000'.
- The risk of the procedure being 'very small'.
What Dr Down did not do was:-
- Inform G that the 1 in 2000 risk of becoming pregnant was based on his personal experience with the procedure.
- Inform G of the general failure rate of the procedure contained in published medical literature (a risk of between 1:500 and 1: 1000).
- Give G published literature about the procedure such as a pamphlet published by the Royal Australian College of Obstetricians and Gynaecologists.
The tubal ligation surgery was performed on 6 February 2002. G later resumed sexual relations with C, her defacto partner, and fell pregnant in May 2002. On 30 March 2003 the child was born. Both G and C issued proceedings against Dr Down for loss and damage caused by the failed procedure.
During the course of the trial it became apparent that G did not really appreciate the concepts of percentages, ratios and odds. It was also established that she did not know of the risk of falling pregnant while on the pill (evidence was led that the risk of G becoming pregnant while taking the contraceptive pill was about 1:100). To cut through the confusion and uncertainty, counsel for Dr Down obtained the following concessions from G in cross-examination:-
- Q: My point is this, if you had been told 'forget about the numbers', that having the tubal ligation involved less risk of becoming pregnant than being on the pill, which is what you were on at the time, you would have had the procedure whatever the number was.
- A: Most probably would have, yes.'
The Decision At First Instance
The trial judge held that Dr Down had breached his duty of care to G by failing to adequately warn her of the risk that the surgery might fail. He held that Dr Down ought to have made it clear that the 1:2000 risk of failure related to his personal experience and have balanced that advice by furnishing the general statistics and the pamphlet. The trial judge went on to find however that Dr Down's breach of duty did not cause G's loss, and that she would have had the surgery even if provided with all relevant information concerning the risk of failure. There was therefore judgment for Dr Down.
G and C appealed. Dr Down also filed a notice of contention against the finding that he had failed to adequately warn G. He argued that it was unnecessary to inform G of the risks of pregnancy revealed by the medical literature because she was not inquisitive and did not seek further information from him. He also said that she would not have comprehended the information even if it had been provided.
The Court of Appeal upheld the decision of the trial judge that Dr Down had failed in his duty to properly warn G of the risks involved with the procedure, but that G would have proceeded with the surgery in any event.
In response to Dr Down's argument that he owed no duty to provide G with published literature or other statistics because she would not have read or understood them the court said:-
- [Dr Down] argues that G would not have attached significance to the further information which the judge found should have been conveyed to G. I reject that submission. It is the relative risk of pregnancy between the contraception currently used and tubal ligation that is critical to a woman contemplating the later procedure and which was important to G. It is the duty of a surgeon who gives advice on the issue to disclose all material information bearing on that relative risk.
The decision reinforces some useful guidelines for doctors and other health care providers when it comes to providing patients with information: -
- Discuss your track record and professional standing but be careful not to focus on personal experience at the expense of more broadly based statistics contained in published medical literature. Practitioners also need to be careful about the accuracy of their 'failure rate' as it may be that patients who have experienced an adverse outcome do not later complain.
- Provide the patient with all relevant information regarding material risks notwithstanding a suspicion or belief that the information will either not be considered or comprehended by the patient.
- Where it is apparent that a patient has little or no grasp of the seriousness of a risk expressed as a ratio or percentage or otherwise, then the risk should be described in plain English, and where possible with reference to a yardstick or by way of a comparison that will 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.