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).