November 23, 2013 Cogent Lawyers

Doctor’s duty to warn

A doctor’s duty to warn of inherent risks of a procedure is to protect the patient from injury that is unacceptable to them and a common basis for medical negligence claims.

The patient in this case underwent a surgical procedure relating to his spine. There were two inherent risks which the doctor had failed to warn him of: first, nerve damage; and second, paralysis. The patient ended up with nerve damage and sued the doctor in negligence. 

The court found the surgeon had been negligent in failing to warn the patient of the risk of nerve damage, but even if the patient had been warned of that particular risk, he would still have gone ahead with the operation. Therefore, the failure to warn did not cause the injury. As for the risk of paralysis, the court found the surgeon had been negligent in this as well and that if the patient had known about the risk of paralysis, he would not have agreed to the procedure. 

However, as that risk did not eventuate, the court held the surgeon could not be liable for the consequences of the acceptable risk because of negligence associated with an unacceptable risk. The court held that the underlying policy is to protect the patient from the occurrence of a physical injury, the risk of which is unacceptable to the patient.

Therefore, liability should not extend to harm from risks that the patient was willing to hazard.