The Western Australia Court of Appeal recently placed limits on
a surgeon's duty to warn of the potential consequences of
In May 2001 Mr Heath, a surgeon, performed bowel surgery on Mr
Hammond, during the course of which Mr Heath found it necessary to
repair a bowel protrusion caused by previous surgery. He did this
by inserting a mesh commonly used by surgeons to repair
Despite the surgery, Mr Hammond continued to be unwell and as a
consequence Mr Heath performed two further sets of abdominal
surgery in August 2001, but did not remove the mesh inserted in the
In February 2003, Mr Hammond had further abdominal surgery
performed by another surgeon, Mr Hool. During this surgery, Mr Hool
found a fistula (an abnormal passage) which was associated with the
mesh. During the course of the surgery, Mr Hool was able to remove
some but not all of the mesh, which had become incorporated into
the fistula. Mr Hammond made a reasonable recovery, but continued
to suffer further symptoms of abdominal pain which he partly
attributed to the presence of the mesh.
Mr Hammond sought damages from Mr Heath and Mr Heath's
employer, the WA Minister for Health. He was unsuccessful at first
instance in the WA District Court, and appealed the WA Court of
Appeal. On appeal, the following allegations of negligence were
Failing to remove the mesh during the August 2001 surgery.
Failing to warn Mr Hammond of the risks of maintaining the mesh
in place after the May 2001 surgery.
The WA Court of Appeal dismissed the appeal unanimously. It
found that the evidence supported a finding that Mr Heath's
actions in inserting the mesh in May 2001, and not removing the
mesh August 2001, were not inappropriate (and indeed, were
With regard to the failure to warn allegation, the Court of
Appeal held that, while a medical practitioner may have a duty to
warn a patient of the risks associated with leaving a surgical
appliance in place, for such a duty to exist the circumstances must
warrant such a warning to be given at the time of the surgery. In
relation to this, the Court found that leaving such mesh in place
was commonplace and accepted surgical practice. Further, the
evidence indicated that in neither May 2001 nor August 2001 was
there evidence to suggest that allowing the mesh to remain in place
would reasonably give rise to any adverse risk to Mr Hammond.
The Court of Appeal's decision suggests that a surgeon's
duty to warn is limited to providing warnings on issues which can
be reasonably foreseen by the surgeon at the time of surgery,
rather than issues which might have a remote possibility of
occurring in the future.
Hammond v. Heath  WASCA 6
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