Examples of Medical Negligence: Failure to advise patient of a material risk

Question 0

What are the main cases for failure to advise of material risk?

Answer 0

1. Rogers v Whitaker
2. Bolam
3. Naxakis

Question 1

What was the rule until Rogers v Whitaker?

Answer 1

It was the Bolam Standard: what a reasonably competent group of medical practitioners would have done.

Question 2

What are the facts of Rogers v Whitaker?

Answer 2

Mrs Whitaker had suffered a childhood injury involving injury to one of her eyes.
She wanted to return to workforce, so went to D to seek a procedure.
He advised that he could perform the surgery.
He didn’t describe to her the sympathetic opthalmmia that affected her after the operation, which rendered her almost completely blind.
She had asked about many things and wanted her other eye to be covered during the op so as to prevent anything from happening to it.

Question 3

Rogers v Whitaker

Was there an application of the Bolam test?

Answer 3

The D attempted to use the Bolam test and hauled evidence from other surgeons who advised that they would not have told the P about the risk.

Question 4

What did the court hold in Rogers v Whittaker?

Answer 4

They held that there were three parts to a duty:

1. Diagnosis
2. Advice
3. Treatment

They held diagnosis and treatment were of medical concern. Therefore use of Bolam test can stay the same. However, in terms of information (advice), it was not purely a medical skill.
They formulated a new test for advising material risks.

Question 5

What is the test in Rogers v Whitaker regarding material risks?

Answer 5

A doctor has a duty to advice of material risks.
A material risk is material if:
1. A reasoanble person in the patient’s position would attach significance to; OR
2. the medical practitioner is or ought to be aware that this patient would attach significance to that risk.

Question 6

What is the exception to the material risks test in Rogers v Whitaker?

Answer 6

Therapeutic privilege: where, broadly speaking, divulging the risk would cause the patient more harm than good.

Question 7

Is it enough to show that the reasonable patient would want to know?

Answer 7

No, the P must show that if the patient had been told of the material risk, he/she would not have had the treatment. If the P can’t show this, the action fails.

Question 8

What are the main cases regarding having to show that the P would not have undertaken the treatment had the material risk been disclosed to the patient?

Answer 8

1. Bustos v Hair Transplant
2. Berger v Mutton
3. Chappel v Hart

Question 9

What are the facts of Bustos v Hair Transplant Pty Ltd?

Answer 9

After seeing his Uncle have a successful procedure, the P wanted a hair transplant. Procedure performed, he suffered extensive scarring, a droop and excess skin etc resulting in a psychiatric disorder, breakdown of marriage and collapse of his business and inability to work.

P sued doctor for failing to advice him of those risks.

Question 10

What was held in Bustos v Hair Transplant Pty Ltd?

Answer 10

The court found he had been told of the risk of scarring.
He was also to the keen of desperation and therefore knowledge of the risks would have made no difference to him.

Held: no liability, case failed on causation.

Question 11

What are the facts of Berger v Mutton?

Answer 11

P was nurse in oncology wards.
She had recurrent abdominal pain and vaginal and rectal bleeding for two years. She consulted D with real fears she might have cancer.

D carried our procedure on P during which P’s bowel was perforated.

P claimed she wasn’t warned of this. She suffered shock, PTSD and unsightly scarring. Subsequent reliance on pills and alcohol.

Question 12

What was held in Berger v Mutton?

Answer 12

Held: She had personal expereince of previous procedures conducted similarly and had given her professional knowledge and experience. Was unlikely she didn’t know risks.
Furthermore, she was terrified of cancer so knowing the risks wouldn’t have stopped her.

No liability ensued.

Question 13

What are the facts of Chappel v Hart?

Answer 13

Mrs Hart underwent procedure on her throat. She said to surgeon “whatever happens, I don’t want to end up like Neville Rand” (former premier of NSW).
During procedure random event occurred called media-stenitis. She was not informed of the risk.

She sued for failing to advise her of that risk. She gave evidence that if she had been informed of risk, she would have had operation anyway, but have it later and performed by a much more experienced surgeon.

Question 14

What was held in Chappel v Hart?

Answer 14

NSW COA and HC gave her damages for failing to advise.
They said D can only escape liability if P did not prove that D’s failure to warn resulted in her consenting to a procedure that involved a higher risk of injury than would have been the case if the procedure had been carried out by another surgeon.

In this case, they applied March v Stramare’s test: The common sense test. A more experienced surgeon would be less likely to have a random risk occurring. So having the operation done on her by the D deprives her the possibility of a better result.

Liability ensued.

Question 15

What is the relevance of Naxakis’ case?

Answer 15

The interpretation of Rogers v Whitaker.

Question 16

What are the facts of Naxakis?

Answer 16

Boy was playing around and got hit in the head by a bag and passed out.
Got home, complained he had headaches and was taken to hospital.
Doctor was a junior doctor who failed to order a CT scan.
BOy was discharged from hospital and turned out he had an intra-cranial bleed and suffered brain damage.
Bleed could have been picked up by a CT scan. Parents sued for negligence.

Question 17

What was the interpretation of Rogers v Whitaker in Naxakis?

Answer 17

We’re reading Rogers v Whitaker wrong.
The case says that in diagnosis and treatment, they may be guided by what the profession would say, but they are not bound by it. It is ultimately a matter for the court to determine what the appropriate standard of care was for diagnosis, advice and treatment.

Question 18

What is the relevance of CES v Super Clinics?

Answer 18

Calculation of damage. Problem in this case was what damage she had suffered. She has to prove that she would have had an abortion if she was told she was pregnant. However, she was not and hence deprived of opportunity. So how to calculate damage?

Question 19

What are the facts of CES v Super Clinics?

Answer 19

P young lady who complained of certain symptoms similar to being pregnant. Was tested, but doctor did so negligently. He reported she was not pregnant.
Woman comes back with same symptoms, super clinics again conducts a pregnancy test. AGAIN negligent.
She came to qld, saw a doctor and found out she was pregnant.

She didn’t want to be pregnant as she was in a stable relationship. Several months later, she gave birth and suffered psychiatric problems a a result and had trouble bonding with her child.

Question 20

CES v Super Clinincs

What was the problem with claiming she would have aborted had she found out?

Answer 20

In NSW at the time, there were laws which only allowed her to abort the child if there was any additional risk to her.
In this case, there was not as she was a very health young woman who carried the child successfully to term. There were no additional risks

The D’s argued even though they breached a DOC, she could not have aborted. Accordingly an action must fail.

Question 21

CES v Super Clinincs

How did the court frame the concept of ‘damage’? What had the woman been deprived of?

Answer 21

She suffered psychiatric harm after birth of child. That means pregnancy caused mental damage and physical damage to woman. She had there been deprived of a comfortable physical state.

Court calculated damages on this basis.