Onus On Doctors To Disclose Risks
The Age
Friday November 20, 1992
Surgeons and doctors must advise patients of all material risks of operations and treatments or face action for negligence if a patient suffered an undisclosed side-effect, the High Court held yesterday.
The landmark judgment opens the way for an increase in medical negligence actions. The president of the Australian Association of Surgeons, Dr Daniel Sheldon, said last night that it was possible insurance premiums could go up.
He said surgeons had been aware for some time of the potential problems of not disclosing possible risks and had developed a ``request-consent form" to give them a ``blanket disclaimer" if things accidentally went wrong.
Although legal advice indicated that the forms might not be legally enforceable, signed by patients before an operation, they put the onus on patients ``to ascertain what the dangers are", Dr Sheldon said.
The court held that an ophthalmic surgeon, Dr Christopher Rogers, was liable to pay Ms Maree Whitaker $808,564 for not warning her that a cosmetic operation on her right eye, blinded in a childhood accident, could result in total blindness.
It overuled previous law that conformity with acceptable medical practice was enough to exonerate a doctor. The law had to consider ``the paramount consideration that a person is entitled to make his own decisions about his life", the court said.
Despite several requests from Ms Whitaker, then 49, for information on the operation's risks to her sight, Dr Rogers did not disclose a one- in-14,000 chance that it could lead to ``sympathetic ophthalmia" in her left eye.
Despite a properly conducted operation, recommended by Dr Rogers to improve the damaged eye's appearance and possibly restore some sight to it, Ms Whitaker was left totally blind.
Dr Rogers said the risk of sympathetic ophthalmia ``was not something that came to my mind to mention to her".
The court said the the law ``should recognise and attach signicance to the relevance of a patient's questions", which generally required ``a truthful answer". (Several doctors gave evidence that they, too, would not have warned of the risk.) Because the patient's choice was based on information known only to the doctor, ``it would be illogical to hold that the amount of information to be provided can be determined from the perspective of the practitioner (or the profession)".
``The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment," the court said. This should apply whether or not the patient specifically asked about a risk.
A risk was material if a reasonable person would attach sigificance to it, or if the doctor should have been aware that a particular patient would find the risk significant.
Dr Sheldon said the association left it to members to decide when to warn a patient, and did not follow United States rules that a patient be warned if the risk was less than one in 100.
``We could have sympathy with the concept that if a patient specifically asks, the doctor would normally be expected to advise the patient, provided he is weighing up everythig in the patient's best interests. But sometimes a doctor may feel a responsibility not to frighten a patient unduly in a desperate situation," he said.
``Should he say to a patient about to undergo a routine operation that there is a very remote chance of dying under the anasthetic?"
© 1992 The Age