NSW Court of Appeal considers failure to warn case

NSW Court of Appeal considers failure to warn case

Medical negligence claims can be brought on the basis that a medical practitioner failed to warn a patient of an inherent risk of a medical procedure. To prove a case on the basis of failure to warn, a plaintiff must establish that had they been advised of the inherent risk, he or she would not have undergone the relevant procedure.

In the High Court case of Chappel v Hart (1998) 156 ALR 517, the High Court found that there was a causal connection between a doctor’s failure to warn and the injury that occurred to the patient, in that had a warning been given the patient would not have undergone the operation. In that case the doctor failed to warn that surgery to the patient’s larynx could damage her laryngeal nerve and seriously damage the quality of her voice, which ultimately occurred.

Recently, the NSW Court of Appeal in the case of Wallace v Kam [2012] NSWCA 82 considered circumstances where a plaintiff suffered short-term nerve damage, following surgery to his lumbar spine. The plaintiff’s case was that he had not been warned of that risk, or the risk of a catastrophic outcome such as paralysis (which did not occur). The trial judge found that the plaintiff had not established that he would not have undergone the procedure had he been warned of the possibility of short-term nerve damage.

The plaintiff appealed on the basis that the trial judge should have considered as relevant the failure to warn of the potential for a catastrophic injury, despite this injury not eventuating. The Court of Appeal, by a 2-1 majority, dismissed the appeal. The majority found that once the trial judge had found that the plaintiff would have proceeded with the surgery had the warning of nerve damage been given, the medical practitioner was not responsible for failure to warn of a separate risk, where that risk did not materialise.

Therefore, if the same approach is taken in other jurisdictions, to establish that a plaintiff has suffered an injury due to a failure to warn, the plaintiff must demonstrate that had the medical practitioner warned him or her of an inherent risk that ultimately materialised, he or she would not have undergone the relevant procedure.

If you have a suffered an injury in circumstances where you were not warned of the risk of that injury prior to a medical procedure, you may be entitled to compensation. If you would like further advice in relation to medical negligence litigation, please contact Redlich's Work Injury Lawyers on (03) 9321 9988 to speak directly to a lawyer about your potential claim.

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