Monterosso-Stephen-Dr-PhD Feb16A doctor’s ‘Duty to Warn’ is highly problematic..

In 1992, somewhat jaded by doctors and their traditional reliance on collegial support in matters of medical negligence, the High Court of Australia brought down a significant tort law decision in Rogers v Whittaker. A 40-year-old woman was left almost blind after an operation on her right eye by an ophthalmic surgeon.

The patient developed a rare condition in her left eye and, as there was no restoration of sight in the right, she was consigned to virtually complete blindness. Consequently, she filed a suit against the surgeon alleging a failure to warn of the risk (1:14,000) of ‘sympathetic ophthalmia’. In court, the woman claimed that she had strenuously questioned the surgeon regarding possible complications. The surgeon relied on the so-called ‘Bolan’ principle, which deflects liability in circumstances in which a particular procedure is deemed to be common practice and collegiately acceptable.

Essentially, the ‘Bolan’ principle allows the court to impose a duty of care but any question regarding a breach of standard of care remains a decision for the medical profession.

The High Court found the surgeon negligent and rejected what it deemed to be the paternalistic ‘doctor knows best’ attitude imbued in the Bolan test. Crucially, the six judges found that ‘collegial common practice’ is merely one item to be considered in assessing medical negligence. In addition, the court deemed that the duty of a doctor to a patient is expansive and includes examination, diagnosis, treatment and providing information.

Doctor-computer-warnA number of legal cases post Rogers v Whittaker have also had some ramifications, particularly in the area of duty to warn.

In Chappel v Hart an ENT surgeon was deemed negligent for failing to warn, despite inquisitive and persistent questioning by the patient, of the risks regarding perforation of the oesophagus during a procedure to remove a pharyngeal pouch. So doctors should consider a patient’s individual understanding of medical procedures, particularly in relation to material risk, during pre-treatment consultation.

In Rosenberg v Percival, however, the patient held a PhD, had 20 years’ nursing experience and was an academic. The court rejected the patient’s assertions that she would not have proceeded with the surgery had she been aware of the material risks, largely due to her high level of understanding and experience in the medical area. It’s important to know your patient.

There is no doubt that legislative activism in the area of tort law has had some impact on common law principles relating to medical negligence. Much still remains unsettled in this rather difficult legal area, although a greater degree of certainty has emerged due to the restatement of the Bolan test within civil liability statutory law.

Where the duty to warn a patient of inherent material risk is concerned, the common law Rogers v Whittaker principle remains relevant. The following guidelines may prove helpful.

  • There is a general duty of care for doctors to warn patients of potential material risk.
  • Material risk will be assessed with reference to a particular patient and a particular doctor, and the probability of complications with reference to the actual medical procedure itself.
  • The plaintiff/patient must satisfy the court that any failure to warn by the doctors caused demonstrable loss.
  • The duty to warn is not unequivocal. Not every patient must be warned of every possible risk.

ED: References on request

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