Dear Colleagues;
There is such a case in Australia recently, in fact. In Wallace
v Ramsay Health Care Ltd
[2010] NSWSC 518 (9 July 2010) the plaintiff failed despite the failure of the
doctor to warn of a possible adverse outcome from an operation, because that particular outcome did not eventuate. The
plaintiff had argued that if he had been warned, he would not have undergone
the procedure, and hence would have avoided the ultimate outcome (although this was not
what he should have been warned about!) The judge quoted
Gummow J in Rosenberg v Percival
[2001] HCA 18 at [83]:
…a medical
practitioner will not be held liable for the failure to warn a patient of a
material risk of damage to 'her laryngeal nerve', if the injury that eventuated
resulted from a misapplication of anaesthetic. This is so despite the fact that
the patient would not have had the treatment and therefore would not have
suffered the injury from the misapplication of anaesthetic if the patient had
been warned of the risk to "her laryngeal nerve". This can be seen as
an example of a situation where the application of the 'but for' test would
lead to an unacceptable result.
In effect this seems to be an application of the well-known example of the mountaineer given by Lord Hoffmann in Banque Bruxelles
Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10; [1997] AC 191 at 213:
"A mountaineer about to undertake a difficult climb is concerned about the fitness of
his knee. He goes to a doctor who negligently
makes a superficial examination and pronounces the knee fit. The
climber goes on the expedition, which he would not have undertaken
if the doctor had told him the true state of his knee. He suffers an
injury which is an entirely foreseeable consequence of mountaineering
but has nothing to do with his knee.
On the Court of Appeal's principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which
would not have occurred if he had been given correct information about
his knee. He would not have gone on the expedition and would
have suffered no injury. On what I have suggested is the more usual
principle, the doctor is not liable. The injury has not been
caused by the doctor's bad advice because it would have occurred even if
the advice had been correct."
Regards
Neil
On 15/10/2010, at 8:15 AM, Barbara Legate wrote:
I would say there is liability. The issue is on causation is whether the patient would have undertaken the surgery if fully informed of the risks. If the answer is no, the risk of partial paralysis being the tipping point, then as a matter of a finding of fact, the surgery would not have occurred and the loss would not have occurred. Similarly, if a patient should hear of several risks, none of them terrible, but one of which would be his tipping point – that is, it is one too many, can he only sue for the one that tipped him over the edge, but none of the others?
I have looked at this before, and was unable to find any case that said, bluntly, that the risk that was not warned of had to occur. I would be interested in any case which does say that.
An interesting problem.
Barb Legate
On 14/10/2010 15:33, Marc Ramsay wrote:
I have a question about the Reibl v. Hughes test regarding disclosure of material facts.
Suppose the following.
A patient consents to a surgical procedure.
A given risk, let's a 5 percent chance of partial paralysis, is determined to be a material risk, and that risk is not disclosed. The physician doesn't discuss this risk at all. There are no other problems with the quality of the patient's consent.
The procedure is performed competently, but the patient suffers serious injury. However, the injury is not a matter of the relevant risk materializing.
The patient's loss concerns another risk which,
1) the patient was informed of (perhaps even signed a waiver regarding), or
2) an unforeseeable or previously unknown risk that the physician cannot been have expected to know about or disclose (perhaps the patient suffers hearing loss or loss of sight).
Is it appropriate to the proceed to the causation question in either of these cases (what a reasonable patient would have chosen in the circumstances), or are these kinds of losses to be treated as outside the scope of the physician's wrongdoing?
Thanks,
Marc Ramsay
Acadia University
There shouldn't be liability here. But the real issue is one of adventitious causation. And there are plenty of examples stating that it's not necessarily enough to show (1) a wrong by D, and (2) harm to P that technically wouldn't have happened but for that wrong. Two below:
A. I drive the wrong way down a one-way street. Despite my exemplary look-out, a valuable Persian cat runs in front of my car and gets squished. I don't think I can be liable for the loss of the cat, even though it wouldn't have been killed had I not (negligently) driven down the one-way street (since I would have been somewhere else). The maritime decision in The Estrella [1977] 1 Lloyds Rep 525 has something of this about it.
B. The shipping case of The Empire Jamaica. [1957] AC 386. Shipowners show personal fault in appointing a technically uncertificated officer. As a result of other negligence by the officer, nothing to do with the lack of the certificate, there is a casualty. Is the casualty due to the actual fault or privity of the shipowners (on the basis that it wouldn't have happened if the owners had done as they should and not appointed the officer)? No.
Best to all
Andrew
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