Australia: Lost in translation: The extent of the duty to war

Last Updated: 9 November 2016
Article by Luke Gollan

Medical practitioners will be acutely aware of the need to ensure that a patient who is undergoing a procedure is warned of the risks associated with the procedure. Biggs v George [2016] NSWCA 113 recently tested the duty on a practitioner to warn of risk where the patient's first language was not English and a translator was required during consultations.

"A correct statement of the content of the duty would have involved no more than that the medical practitioners were to take reasonable care to ensure that the material risks attending the surgical procedure were conveyed to the claimant."

Ms Sandra George (the Plaintiff), a non-English speaking patient at St Vincent's Hospital (the Hospital), suffered facial palsy when an adjoining facial nerve was severed during a surgical procedure to remove an acoustic neuroma. Prior to the procedure, the Plaintiff attended three consultations where she had been assisted by interpreters – in the first instance by a friend and then twice by an accredited translator.

The Plaintiff commenced proceedings in the New South Wales District Court in 2012 seeking damages for negligence against the surgeon, Dr Nigel Biggs, and St Vincent's Hospital Sydney Ltd. The allegations were that the way that the operation was performed fell below the requisite standard and that there was a failure to warn the Plaintiff of the risk of damage to the facial nerve associated with the procedure. The trial judge rejected the allegation of intra-operative negligence but found for the Plaintiff in respect of a failure to warn, ordering damages against Dr Biggs and the Hospital of over $330,000.00.

Dr Biggs and the Hospital appealed the decision. The Court of Appeal heard the matter of Biggs v George [2016] NSWCA 113. The relevant issues before the Court on appeal were:

  1. Whether the trial judge erred in his articulation of the duty of care owed by a medical practitioner to inform a patient of risks carried by a surgical operation (where an interpreter was required for effective communication);
  2. Whether Dr Biggs adequately warned the Plaintiff of the risks; and
  3. Whether the alleged failure to warn the Plaintiff of the material risks affected her decision to undergo surgery.

In addressing the first issue, Justices Basten, Ward and Payne unanimously accepted that the trial judge erred in correctly identifying the scope and content of the duty of care owed by Dr Biggs and the Hospital. The Court found that:

"A correct statement of the content of the duty would have involved no more than that the medical practitioners were to take reasonable care to ensure that the material risks attending the surgical procedure were conveyed to the claimant. The need for translation may involve an additional element and as discussed later, it may be necessary for the practitioners to satisfy themselves that the substance of the information conveyed had been understood."

The Court of Appeal went on to find that under the correct articulation of the duty, the evidence failed to support that this duty had been breached, despite acknowledging the possibility that the Plaintiff misunderstood the nature of her condition and the risks of the procedure.

The Court rejected the notion that a medical practitioner must take steps beyond conveying the material risks to a patient. That is, it was affirmed that the duty does not extend to ensuring that the patient understands, or understands an interpreter.

The Court further noted the impracticality of placing weight on the evidence of interpreters in assessing a breach and rejected that the Hospital was required to call the interpreter to give evidence as to the discussion. Thus, in relation to the second issue the Court held that there was no breach by Dr Biggs nor the Hospital as there were insufficient grounds for rejecting Dr Biggs' evidence that he complied with his usual professional practice in the course of the consultation. The Court then considered whether the alleged failure to warn the Plaintiff of the material risks affected her decision to undergo surgery.

The Court held that any failure by the Defendants to warn the Plaintiff was not causative of the injury. This was based on the evidence given at trial by the Plaintiff that demonstrated that she had formed a mistaken belief concerning the placement of her tumour and the need for surgery to treat he tumour, but this belief was not attributable to any breach by Dr Biggs nor the Hospital.

This case reminds medical practitioners of the duty to take reasonable care in conveying the risks of a procedure to a patient, however reinforces that such a duty does not extend to taking special steps to ensure the patient understands, or understands the interpreter.

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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