Definitions
Duty of care means “a duty to take reasonable care or to exercise reasonable skill (or both)”.[1] Section 31(1) stipulates “the standard of reasonable care is reasonable person in the shoe of defendant at the time of incident”.[2] “Failure to exercise reasonable care and skill, and includes a breach of a tortious, contractual, or statutory duty of care is a negligence”.[3]
One type of the duty of care is the duty to warn for medical practitioner. “In informing a patient of a proposed treatment, a medical practitioner has a duty to warn all material risks associated with the that proposed treatment.”[4] “It extended to the provision of information and warnings regarding the risks involved in certain proposed treatments of procedures; information regarding the possibility of side-effects or complications.”[5] “The common law included disclosing all material risks of a proposed procedure of treatment as duty to warn on medical practitioners.”[6]
Material risk means “likely to attach significant in deciding whether to proceed with the treatment as observed by High Court in Rosenberg v Percival”.[7]It can be considered as material either “in the eyes of reasonable person (objective test) or from the needs, concerns, and circumstance of the patient”[8] (subjective test). In Roger, the High Court approved the five factors to be relevant. “These factors are : (i) the nature of the matter to be disclosed, (ii) the nature of the proposed procedure, (iii) the patient’s desire for information,(iv) the temperament and health of the patient and (v) the general surrounding circumstance”[9].
Whether the risk is material to validate the duty to warn
According to reasoning is Roger, relevant factors I considered whether the risk calling for duty to warn here include:
- “The nature of the treatment”.[10]This includes the “need for treatment”[11], “nature of the procedure (routine or complex)”[12].
“In Lawrence v NT, the Court noted in absence of emergency, there was time for a full explanation of the risks involved.” [13] “In F v R, the Court held the more complex the procedure, the greater the need to inform the risks.” [14] “As the cosmetic surgery is largely elective, even unlikely risks or risks involving minor harm tend to be material risks”.[15] “The elective surgery is that strictly unnecessary or unwarranted.”[16]
- “The general surrounding circumstances”.[17]
- According to the reasoning in B v Marinovich, the Court held that the patient’s inquiry as to addiction was as sufficient basis on which to find that the risk of addiction was material. [18] In a similar case, Chappel v Hart, Mrs Hart underwent surgery for removal of pharyngeal pouch and expressed concern to Dr Chappel about the operation affecting her voice. The risk was held to be material because of the expressed concern.[19]The Court held that the inquiry by a patient as to a kind of risk invariably renders that risk to be material.[20]Her explanation as to the importance of fitness is same as inquiry in nature of conveying her concerns. Therefore, her explanation was sufficient to render the risk to be material.
- From the objective test of view, a reasonable person in the patient’s position would be likely to attach significant to it.[21]
Courts could expand their focus to the patient’s(possibly) unreasonable requirements or fears, provided a medical practitioner is or ought to be aware of them.[22] A risk is material if a medical practitioner knows or ought to know that the patient would attach the significant to the risk. [23]
- The degree of risk inherent and [25]The serious of the possible harm.[26] Generally speaking, the gravity of risks and likelihood of the risks are positively correlated with the test of materiality. Under this balancing approach adopted by Courts, a “slight risk of serious harm may satisfy the test [of materiality], while a greater risk of small harm might not.[27]The severity of a risk is judged with the position of the patient.[28]
Courts have tended to consider these matters together in a balancing approach.[29] By reference of other similar cases, this falls within this level of possibility in Anderson v Bowden (1997). The Court find the risk of is lingual nerve damage is material with the likelihood is 1 in 200.
Whether Duty to warn is discharged
The SA Court is likely to find the reasoning by NSW Court in a similar case persuasive. NSW Court in Biggs v George held the one of the key points to discharge the duty of care is that medical practitioners must take reasonable care to ensure that a patient understand the risk. [30] It also held the content of duty is that the medical practitioners conveyed the information of material risks involved to the patient and it may also be necessary for medical practitioners to satisfy themselves that the substance of the information had been understood. [31]
In addition, Morocz v Marshman provides an example where warning a patient of the risks of a procedure by way of both consultation and a pre-operative brochure meant that the medical practitioner had fulfilled the duty to warn of material risk and not negligent.[32] It indicates the bar of discharging the duty to warn by way of a pre-operative brochure. Therefore, we believe the action of gave the list could discharge the duty to warn.
[1] Civil Liability Act 1936 (SA).
[2] Ibid.
[3] Ibid.
[4] M Doepel and s Canton, ‘The Duty to Warn of a Material Risk:Why You Should “Sweat” It-Marocz v Marshman’ [2015] Australian Civil Liability 86.
[5] Geoff Masel and Bernadette Richards, The Laws of Australia (at 21 August 2014) ‘The Civil Liability Acts do not apply in the context of the provision of pre-treatment advice’.
[6] Ibid.
[7] T Addison, ‘Negligent Failure to Inform: Development in the Law since Rogers v Whitaker’ (2003) 11 165.
[8] Rogers v Whitaker (1992) 175 CLR 479.
[9] Ibid.
[10] Geoff Masel and Bernadette Richards, The Laws of Australia (at 21 August 2014) ‘Many factors are relevant to the identification of material risk’.
[11] Addison (n 7).
[12] Ibid.
[13] Ibid. Citing [2001] NTSC (Mildren J, 23 May 2001, unreported, BC200102526) at [21]
[14] Ibid.
[15] Ibid.
[16] Doepel and Canton (n 4).
[17] Masel and Richards (n 11).
[18] Addison (n 7).Citing B v Marinovich [1999] NTSC 127 (Riley J, 22 November 1999, unreported, BC99076060 at [104].
[19] Ibid.
[20] Ibid.
[21] Doepel and Canton (n 4).
[22] T Addison, ‘Negligent Failure to Inform: Development in the Law since Rogers v Whitaker’ (2003) 11 165 .Citing Rosenberg v Percival (2001) 205 CLR 434
[23] Ibid.
[24] Ibid.
[25] Masel and Richards (n 11).
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Addison (n 7).
[30] R Crittenden and H Shiel, ‘When Has an Obligation to Obtain Informed Consent Been Discharged?’ (2016) August Australian Civil Liability 70.
[31] Ibid.
[32] Doepel and Canton (n 4).