What duty does a doctor have when warning their patients about possible medical risks?
A recent case has made law-makers question what is required by our doctors and what grounds patients have to claim.
WHAT IS MEDICAL NEGLIGENCE?
Hospitals, doctors and health care providers have a duty to take proper care when treating patients. If a patient were to suffer injury that came as a direct result of inadequate skill or care then the patient (or family) may be able to make a claim for financial compensation.
Medical negligence claims are also extremely complex. Not every outcome results in a claim and it’s crucial to demonstrate a connection between the error and negative outcome.
When Ian Wallace underwent a surgical procedure involving his lumbar spine, there were two risks Mr Wallace never got told about. These were:
1. A temporary local damage to the nerves (Neurapraxia) caused by lying face down on the operating table for a lengthy period; and
2. A one-in-20 chance of permanent paralysis which would result in damage to his spinal nerve.
When the procedure was unsuccessful and Mr Wallace did in-fact suffer Neurapraxia, Mr Wallace attempted to sue his surgeon for negligence. The court found that Mr Wallace’s doctor failed to provide sufficient warning but the claim failed because Wallace would still have undergone the surgical procedure despite the risks. It was found that there was no causal connection between the failure to warn and Wallace’s Neurapraxia. The trial judge declined to make any findings in relation to the surgeon’s failure to warn of the surgery’s risk of paralysis, and about whether or not Mr Wallace would have gone through with the procedure if he had known of this risk, on the basis that this wasn’t relevant since the risk did not materialise.
This decision reinforced the principles that medical practitioners have a duty to warn a patient of all material risks involved but in order for a medical practitioner to be held liable, the patient (and plaintiff) must prove the breach was causative of the harm that eventuated.
THINK YOU HAVE A NEGLIGENCE CLAIM?
Then contact a lawyer. It’s important that you communicate with someone who has experience in medical negligence cases as they are extremely complex. Time limits also apply so early investigations are essential.