Date: Tue, 18 Nov 2008 00:00

From: Jason Neyers

Subject: G & C v Down [2008] SADC 135

From Bill Madden:

Dear All

Some may be interested in an admittedly lower court decision from South Australia: G & C v Down [2008] SADC 135.

The headnote is self explanatory:

First Plaintiff consulted with Defendant for purpose of undergoing  tubal ligation surgery - First Plaintiff seeking permanent contraception through the surgery - First Plaintiff became pregnant shortly after surgery and later gave birth to her fifth child - Defendant warned the First Plaintiff of the risk of falling pregnant - scope of duty of care to warn of risk - whether warning given adequate - standard of care - Defendant in breach of duty of care in failing to adequately warn -  claim for loss and damages - First Plaintiff failed to establish that  breach of duty caused the loss and damages claimed - claim dismissed.

Of interest is the treatment at [140] - [141], regarding the defendant's disclosure of adverse event frequencies in his own hands, as opposed to at might be called the industry wide complication rate. The court said:

[140] In my opinion, the Defendant failed to meet the standard required of him in that he did not make it clear that the numerical ratio of 1 in 2000 related to his experience. Using the standard of an ordinary skilled gynaecologist, such a practitioner would have made it clear. In my view, where the gynaecologist’s personal experience is conveyed in numerical terms, it is important that it be made clear to the patient that it refers the gynaecologist’s failure rate. The personal experience of the gynaecologist would be of great significance to the patient. 

[141] I am also of the opinion that where the numerical ratio of the gynaecologist’s personal failure rate is conveyed, either in response to questioning by the patient or being volunteered by the gynaecologist, then in order to provide a proper balance for the patient, the literature failure rate should be conveyed. The picture would not be complete otherwise. The fact that the gynaecologist does not know whether there has been a pregnancy, or more than one, following a procedure which has not been reported to him provides support for the proposition that the personal figures should be balanced by furnishing the literature figures. In the circumstances here, a reference to approximately 1 in 500 as the numerical risk contained in the College publication, or a reference to 1 or 2 in 1000 which would appear to have been accepted as the literature figures at the time, would have sufficed. I think the practice adopted by Dr McEvoy in briefly explaining that the literature figures cover the entire spectrum of gynaecologists both experienced, and inexperienced, and with varying degrees of operative skills would have needed to accompany the literature figures in order to make them meaningful.

Although the plaintiff failed on causation, it is interesting that the trial judge was of the view that where the numerical ratio of the surgeon’s personal failure rate is conveyed, either in response to questioning by the patient or being volunteered by the surgeon, then in order to provide a proper balance for the patient the literature failure rate should be conveyed.

Not addressed but of perhaps broader interest would have been the opposite scenario - what ought to have been disclosed if the surgeon knew that his /her own adverse event rate was higher than the literature figures. I would be interested to hear of any cases along the latter lines.

Regards
Bill Madden

-- 
Jason Neyers  
Associate Professor of Law & 
Cassels Brock LLP Faculty Fellow in Contract Law 
Faculty of Law  
University of Western Ontario  
N6A 3K7 
(519) 661-2111 x. 88435

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