Failure to Warn Untouched by the High Court

Case history

The patient underwent spinal surgery for an intervertebral lumbar disc protrusion. Post-operatively, the patient had bilateral femoral neuropraxia, which was caused by him lying prone for an extended period during the surgery. The patient brought a claim in the Supreme Court of NSW and alleged that the surgeon failed to warn him of the following two material risks:

1. the 5% risk of permanent paralysis resulting from damage to his spinal nerves (this did not eventuate), and
2. the risk of temporary damage to the nerves in his thighs (this eventuated).

Medico-legal issues

At trial¹, the patient argued that he would not have undergone the surgery if he had been warned of either risk. The trial judge, Harrison SCJ, rejected this submission. Harrison SCJ, held that the surgeon breached his duty of care to the patient by failing to warn of the material risk of bilateral femoral neuropraxia. However, Harrison SCJ found that the surgeon’s negligence was not the “legal cause” of the patient’s nerve damage because the patient did not establish that he would have declined the surgery if warned of that risk. Relevantly, his Honour did not make a finding of whether the risk of paralysis was a material risk, which the surgeon was under a duty to disclose to the patient, nor whether he would have declined the operation if warned of that risk – as this risk did not materialise, he treated it as irrelevant. The trial judge found in favour of the surgeon.

The patient appealed against the Supreme Court decision to the NSW Court of Appeal.² In so doing, the patient argued that Harrison SCJ erred in holding that the surgeon’s failure to warn of the risk of paralysis could not be the legal cause of his neuropraxia when, if he had been warned of paralysis, he would not have had the surgery. The Court of Appeal proceeded on the assumption that the patient would not have undergone the surgery if he had been warned of the risk of paralysis. The majority considered that a causal relationship needed to exist between the surgeon’s breach of duty (ie, the failure to warn of the risk of paralysis) and the harm the patient actually suffered. The majority determined that risk of neuropraxia and the risk of paralysis were different and unrelated – the risk of paralysis was related to surgical skill and care whereas the risk of neuropraxia was related to necessary intraoperative patient positioning. The majority of the Court of Appeal therefore held that it was not appropriate for the surgeon to be held liable for the neuropraxia on the basis of negligence relating to a separate risk which had not materialised. The NSW Court of Appeal, by majority, dismissed the appeal.

High Court decision

Not to be deterred, the patient appealed to the High Court of Australia (HCA).³

The HCA dismissed the appeal and confirmed that the patient was not to be compensated for the materialisation of a risk he would have been prepared to accept. In reaching this decision, the HCA made a value judgement that as the only risk which came home (i.e., the neuropraxia) was one the patient would have accepted anyway, he was not entitled to be compensated for it even if the combined warning was absent and might have made a difference to his decision to undergo the operation at all.

Discussion

The HCA provided a useful explanation of the difference between duty of care and causation, as the concepts can sometimes cause confusion among legal and medical practitioners, depending on the circumstances of a case. Duty of care is a “forward-looking rule” that is concerned with what is reasonably foreseeable. Causation is a “backward-looking rule” that addresses who (or what) was responsible for an injury. As these two concepts have a different focus, it is possible for a medical practitioner to breach his or her duty of care, but not be the cause of a reasonably foreseeable injury.

The HCA’s decision confirms that if a patient is to succeed in bringing a failure to warn case, it is not sufficient for him or her to allege that their medical practitioner failed to warn of a material risk and should therefore be liable for a poor or unexpected outcome. Duty of care and causation are distinct concepts and need to be analysed separately. Although it is reassuring to know that a failure to warn of a material risk will not always be a “fatal blow” to medical practitioners if a claim is brought against them, it is vital that medical practitioners continue to warn patients about material risks relevant to any proposed medical or surgical treatment.

By Yvonne Baldwin, Claims Manager, MDA National.

Summary points

• A medical practitioner will not always be held liable if he or she has not warned the patient of a material risk.
• Notwithstanding this, a medical practitioner should always warn his or her patients about the material and inherent risks associated with any proposed treatment or procedure.
• All consenting/warning discussions that medical practitioners have with their patients should be clearly and comprehensively documented in the medical records, as this will provide contemporaneous evidence to support a doctor’s assertion that the patient was appropriately warned.

1 Wallace v Ramsay Health Care Ltd [2010] NSWSC 518.
2 Wallace v Kam [2012] NSWCA 82.
3 Wallace v Kam [2013] HCA 19 (8 May 2013).