A recent case in the New South Wales Court of Appeal serves as a
reminder to all medical practitioners that they should have
properly drafted consent forms and other procedures in place to
ensure that patients provide their fully informed and voluntary
consent to any medical procedure.
On 19 September 2013, the New South Wales Court of Appeal in
Paul v Cooke  NSWCA 311 confirmed that a radiologist
was not liable where a patient suffered permanent disablement after
the materialisation of an inherent risk.
Dr Cooke, a radiologist, negligently failed to diagnose a berry
aneurysm in 2003. Surgery was performed on Mrs Paul in 2006 by
another doctor. During the surgery, the aneurysm ruptured and Mrs
Paul suffered permanent disablement. Mrs Paul sued Dr Cooke for
damages resulting from the injuries she suffered after the surgery
in 2006, alleging that Dr Cooke's negligence in 2003 was the
cause of the injuries.
The NSW Court of Appeal held that the rupturing of the aneurysm
was an inherent risk that pre-dated, and was neither created nor
increased by, the radiologist's negligent failure to
The Court of Appeal said that:
even if the radiologist had diagnosed the berry aneurysm, Mrs
Paul would still have faced the risks of a procedure that she
willingly chose to undergo; and
those risks could only have been avoided had the decision to
undergo surgery not been made.
The Court decided that the radiologist was not liable for the
materialisation of an inherent risk.
The case naturally focuses on the causation principles in the
context of a medical negligence case. But it also notes that Mrs
Paul willingly chose to undergo the treatment. This serves as a
reminder that a patient should be fully informed of all material
risks before deciding whether to receive any form of medical
Medical practitioners should ensure that:
they have procedures in place to ensure that patients provide
their fully informed and voluntary consent to any medical
properly drafted consent forms are signed by the patient as
evidence that fully informed consent was obtained.
What happens if a patient, particularly a mental health patient,.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).