Another Failure to Warn Case fails.. sort of!

Posted on November 6, 2011 by Julian Johnson

I note with interest the Court of Appeal's decision in Nigam v Harm [2011] WASCA 211.

Whilst a case concerning a negligence action against a firm of solicitors, the important aspects of the case predominantly related to medical negligence claims.  

It was alleged the relevant firm of solicitors had been negligent in failing to:

  • take action to protect a potential medical negligence claim by Mrs Harm against surgeon, Dr Hastwell.
  • pursue various lines of investigation concerning possible lack of care on the part of the relevant surgeon, Dr Hastwell.

Mrs Harm had succeeded in her case against such solicitors at trial, but on appeal, such claim was overturned. The court majority concluded that the solicitors had not been negligent.

For a lawyer working in this area, it was interesting to read the degree of initiative/imagination considered required on the part of solicitors investigating quality of medical care issues.. My impression was that the 'bar' was set lower than I would expect.

This was particularly so, in relation to the issue of reminding Ms Harm about the impending expiry of the 'holding' writ that had been lodged (which would end any claim if it expired without action).  Given it seems she was still eager to pursue claim, I am surprised her solicitor was not considered obliged to remind her of this deadline so a decision could be made, whether the writ was served (or an application made to extend), given the consequences if it was not (which it was not clear to me, from reading the decision, she knew).

Justice Newnes made interesting comments in relation to the one area he did consider the solicitors ought to have considered some prospects of a legitimate claim, a claim that the surgeon had failed to appropriately warn Mrs Harm of the risk that the surgery may cause significant post-operative nerve pain in the area of scarring at her surgical incision (see for example @ [116] - [121]).

His Honour concluded, that any claim by Mrs Harms would not have prevailed, because she would not have proved that if warned she would not have gone ahead with such surgery.

With respect, I am not sure the evidence really supported such a conclusion (as distinct from a conclusion that 'no conclusion' could be drawn, because too many important things were unknown relevant to such decision (for example: the true scale of such risk, the alternatives open to her, other than such surgery {including the risk if it was performed laparoscopically, if this was possible}).

Justice Newnes view was shared by McLure P and so prevailed.   Interestingly, Justice Murphy disagreed and considered the solicitor had been negligent in relation to this failure to warn aspect of the potential claim.

 

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Does a Doctor have a duty to inform of Disciplinary Action/Restrictions?

Posted on October 29, 2010 by Julian Johnson

 Working this afternoon on a claim for a client who suffered serious complications as a consequence of gynae surgery, performed by a surgeon who has recently (and previously) been the subject of disciplinary action by the (now defunct) State Medical Board.

The interesting question that arises, following my client learning of such disciplinary action which preceded her contact with the surgeon, is whether the surgeon was obliged to inform her of such action and the then restrictions upon his surgical services. These did not directly apply to the form of surgery she was contemplating, but nonetheless, understandably, she says that she would have liked very much to know of such restrictions and had she, would not have had the surgery performed by the surgeon in question (you can no doubt imagine the less neutral manner in which she expressed this...).
 
In my view, though I suspect all but universally ignored, a duty should arise for a doctor in such circumstances to inform their patient of such action + resulting restrictions.  Rogers v Whittaker defines the health professional's duty as one to communicate the information "a reasonable person in the patient's position would be likely to attach significance to" (the objective test) or which the doctor should suspect the particular patient would attach significance to (the subjective test).
 
In my view a compelling case can be argued that any serious disciplinary sanctions against a doctor or restrictions on the range of services they may offer, is something a patient is likely to attach significance to (an understatement..), in deciding whether to proceed with proposed surgery.
 
Interestingly, such a position is supported by one of the 'old' Phil Hardcastle cases, Nunn v Hardcastle, in which Deane DCJ found that the surgeon ought to have informed the patient of the fact a moratorium had been imposed in relation to the particular operation at St John of God Hospital, so the surgery was performed at an alternate hospital
 
Let me know if you have a view one way or another on this issue - which is obviously related to the equally thorny issue of whether medical practitioners should disclose their relative complication rates etc, compared to their colleagues in a given filed (lap choli's being a well known example).
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