Patient fails in appeal dealing with failure to warn

Key Points
  • The Court of Appeal decision deals with a doctor’s duty to warn patients of material risks and reiterated what a material risk is.
  • The patient led no expert evidence to support her contention that risks she had not been warned of were ‘material risks’.
  • The Court of Appeal concluded that the patient had been warned of all material risks and therefore she could not persuade the Court there had been a breach of duty by the doctor.

A recent decision of the NSW Court of Appeal considered issues in relation to a doctor’s duty to warn patients of risks associated with treatment.

In the recent appeal of Morocz v Marshman [2016] NSWCA 202 the court had to consider whether the appellant (patient) was adequately warned by the respondent doctor of the possible consequences of a medical procedure.

At first instance the Supreme Court of New South Wales dismissed the claim because the doctor had warned the patient of the matters which the experts, who gave evidence, said she should have been warned of.  Further, the trial judge concluded that any other matters the plaintiff established she was not warned about were not matters that the doctor was  required to be advise her of.

In a unanimous decision of the New South Wales Court of Appeal the appeal was dismissed.  In relation to the aspect concerning the alleged failure to warn, the court noted a medical practitioner’s comprehensive single duty owed to patients in relation to warning them off material risks.  Reference was made to the decision of Rogers v Whitaker [1992] H A 58 in which it was found that a patient’s choice to undergo medical treatment is meaningless unless it is made on the basis of relevant information and advice.  It was noted that the duty to warn extends to warning patients about material risks in relation to the proposed treatment. A material risk is one which a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance. Material risks also include risks that the medical practitioner is, or should reasonably be aware, would be significant to a particular patient because of their individual circumstances.

The amount of information that a careful and responsible doctor must disclose, depends on factors including the nature of the matter to be disclosed, the nature of the treatment, the desire for information, the temperament and health of the patient and the general surrounding circumstances.

The court noted that the appellant had conducted extensive investigations prior to consulting the doctor and was enthusiastic about undergoing the procedure.  The patient had given evidence, based on her own independent investigations, that alternative treatments were inferior to the surgery proposed.  It was noted that the patient was an intelligent and well educated person and had conducted considerable research and sought out the respondent doctor to perform the surgery.

The patient could not lead any evidence at the trial or on appeal which supported the risks she says she should have been warned of but was not. The Court of Appeal noted that the patient’s submissions in relation to what she should have been warned about was principally founded upon her evidence excluded by the primary judge and which was contradictory to the expert evidence before the primary judge.  On this basis the Court of Appeal concluded that the appeal must fail.

The Court of Appeal did not have to reconsider the issue of factual causation because it concluded there had been no breach of duty in failing to warn the patient of the material risks.

This matter provides a useful reminder on the obligation of a doctor’s duty to warn patients of material risks and what a material risk is. If expert evidence is lead which establishes that the patient was warned of all ‘material risks’ then the patient will fail to establish that there has been a breach of duty of care in relation to the warning.

Post by Karen Kumar 

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