A recent decision of the New South Wales Supreme Court provides some guidance on the extent to which a medical practitioner ought to provide specific and detailed warnings to a patient prior to treatment or surgery.
Facts
Dr Kam, the second defendant, is a neurosurgeon. On 22 November 2004 he performed spinal surgery on the plaintiff who alleged that as a result of this procedure he sustained temporary paralysis and required a further corrective procedure. The plaintiff's condition had completely resolved by trial.
The plaintiff claimed that Dr Kam failed to properly warn him that there were a number of risks associated with the procedure, which could have adverse consequences. It was accepted that Dr Kam had given a general warning and had informed the plaintiff that the procedure had a 70% to 75% chance of success. Dr Kam had also informed the plaintiff that he should lose weight before undergoing the procedure.
The plaintiff's case was that Dr Kam's warning was inadequate to the extent that it did not warn of particular dangers associated with the plaintiff's obesity. The plaintiff also claimed that no warning was given of the specific risk of temporary paralysis. Dr Kam conceded that he had not warned the plaintiff of this risk.
The plaintiff alleged that had he been warned of these risks, he would not have undergone the procedure.
There was no allegation that Dr Kam had performed the procedure negligently.
Issues
The New South Wales Supreme Court was required to consider three issues:
- Did Dr Kam breach his duty of care to the plaintiff by failing to give a proper warning of the risks of the surgery?
- Did the plaintiff suffer harm?
- If he did, was that harm caused by Dr Kam's negligence?
Decision – New South Wales Supreme Court
The Court held that Dr Kam's warning to the plaintiff should have included a specific warning about the risk of temporary paralysis, particularly given the plaintiff's obesity. This would have been a reasonable and proper recognition of the need to tailor the preoperative explanation to a patient, as opposed to the giving of a general warning.
The Court also held that although the plaintiff's condition was not permanent, the fact that the plaintiff had suffered harm was sufficient to complete the cause of action. This was particularly so given that a second operation was required to correct the plaintiff's condition.
On the matter of causation the Court held that the plaintiff would not have declined surgery even if warned of the particular risk that materialised. 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. The Court considered 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.
Consequently, it was held that Dr Kam's failure to warn of the particular risk that materialised was a breach of his duty of care to the plaintiff but was not causative of the plaintiff's loss or injury, there being no suggestion that the procedure itself was negligently performed.
Judgment was entered for Dr Kam with costs.
Comment
Although Dr Kam successfully defended this claim on the basis of causation, the judgment reinforces the real risk of exposure to damages claims if medical practitioners do not provide patient specific warnings pre-operatively.
The decision highlights some useful guidelines for medical practitioners and other health care providers:
- It should not be assumed that a warning about a particular risk is inherent in a general warning;
- Warnings should incorporate the particular dangers associated with the patient's individual characteristics;
- The likelihood of the particular risk materialising and the extent and degree to which it might affect the patient should be drawn to the patient's attention; and
- All relevant information that explains the danger confronting the patient and its potential consequences should be described in a way that allows the patient to attach significance to the risk. Plain English should be used and, where possible, the risk should be described by way of a comparison to 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.
