When do I have a medical negligence claim for failure to advise of risks associated with medical treatment?

Risks with the TAC

When undergoing medical treatment we place a lot of trust in the medical provider to look after us and ensure that we are not only provided the best possible care, but also that we are fully informed as to all the associated risks with treatment. However, unfortunately there are often cases where negative outcomes materialise and individuals are left feeling not only disappointed with but overwhelmed and traumatised. In a situation like this it is best to contact a firm like Henry Carus & Associates, we can support you in achieving the best possible compensation for the harm you have suffered.

As part of the duty of care owed by medical practitioners, is the duty to advise patients of material risks. This duty means that medical practitioners must adequately warn their patients of the consequences of treatment they are contemplating. If the medical practitioner fails to warn the patient of a particular risk and that risk in fact eventuates and causes injury to the patient, then that medical practitioner may be liable.

What is a material risk?

A risk is material in the following two circumstances:

  • 1. A reasonable person in the patient’s position would be likely to attach significance to the risk; or
  • 2.The medical practitioner was, or should have been, aware that the particular patient would be likely to attach significance to this risk.

In determining whether a particular risk fits into either of the two categories above, the extent or severity of the potential injury is of great importance. A slight risk of a serious harm might satisfy the test, while a greater risk of a small harm might not. It is also important to note that, in considering the severity of the potential injury, that severity is judged with reference to the particular individual’s position. So for example, a small loss of some vision would ordinarily not be considered serious; if however, the patient is already blind in one eye and stands to lose more sight, that risk becomes one of an altogether greater magnitude.

Further, the patients need for the operation is important, as is the existence of reasonably available and satisfactory alternative treatments. A patient may be more likely to attach significance to a risk if the procedure is elective rather than life saving.

In regard to the second limb above, ‘whether the medical practitioner was or should have been aware that the patient would be likely to attach significance to the risk’, this can be established by whether a patient asked questions revealing a fear or concern. For example if a patient asked questions identifying that they had a particular concern about stroke, let’s say because a family member had a stroke, regardless of whether the risk was very small, this would be a material risk to that particular patient, that should be advised of.

It is important to keep in mind that warnings of risks may not always be verbally given, but may come in the form of information pamphlets and forms provided to you by a particular medical practitioner.

Once it has been proven that you were not given a warning of a material risk then you must prove, that had the warning been given, the injury would have been averted, in the sense that the patient would have not had the treatment in question. This is a question that involves the subjective evidence of the particular patient but also involves a court looking at the totality of objective evidence.

Although it needs to be proven that the patient would have avoided the risk if they had been aware of it, the High Court has held that is not to say that the patient needs to prove that he or she would not have had the medical procedure performed. If the patient had been informed of the risk and would have elevated to have the procedure performed by a more experienced practitioner, then causation is satisfied, this would seem to be on the basis that the chances of the risk actually occurring lessen if a more competent practitioner performs the procedure.

Cases involving breach of duty to inform of risks are complex and difficult cases. If you believe that you have suffered an injury because of a failure to provide warning of a certain risk, it is best to seek legal advice. By contacting Henry Carus + Associates, one of our lawyers specializing in medical negligence will be able to support you in achieving a fair outcome for the injury you have suffered.