The Victorian Court of Appeal delivered its decision in relation to the Appeal in this case on 18 February 2014.  The Court of Appeal unanimously agreed to dismiss Ms Odisho’s appeal against the Trial Judge’s dismissal of her claim.

The case concerned an alleged failure to warn Ms Odisho of a very rare risk of thrombo-embolism associated with recommended gynaecological treatment for her heavy menstrual bleeding via tranexamic acid medication.  The Court of Appeal upheld the Trial Judge’s conclusions that in fact Ms Odishi’s thrombo-embolism was not caused by her use of this medication and in any event, although she was not warned of such risk, she had not established that had she been warned, she would have declined such recommended treatment.

The case was interesting to me in the following respects.

  1. The Court of Appeal left open the question of whether they would have overturned the Trial Judge’s conclusions that no duty to warn of the relevant risk arose, had they reached a different conclusion in relation to causation.  It is therefore a good example of the relatively low probability of a risk that may nonetheless be required to be disclosed.  Interestingly the fact that thrombo-embolic event was included as a rare side effect (in less than 1/1000) in MIMS was important in supporting a conclusion that a duty to inform the patient of this risk arose.  MIMS should now be on every Plaintiff lawyer’s desk, for reference in medication cases.
  2. The case is an example of the combined objective, then subjective aspects of enquiry to determine whether a duty to warn arose.  As established, the enquiry is initially whether a reasonable patient would attach significance to the relevant risk.  The disclosure obligation can then be increased if there are particular features of the patient in question, which suggest significance would attach to the relevant risk.  Members of the Court recognised that Ms Odisho was stated to have been anxious and concerned about treatment for her condition, though not that this proved she would have attached significance to the risk in question.
  3. Although already well established, the Court confirmed that whether or not provision of a warning was usual practice was not the issue in deciding whether duty to warn arose (see at [27]).
  4. The case is a good example of the limited utility of a Plaintiff’s bald assertion that if warned they would not have proceeded with given treatment.  As members’ of the Court stated “the exaggerated nature of the Appellant’s answers to the questions put to her on the issue of what she would have done had she received a warning well justified the Trial Judge’s rejection of this evidence.  When one looks at the whole of the evidence, including the evidence of treatment to which the Appellant was prepared to consent, like the Trial Judge, we are unpersuaded that an appropriate warning of the risk of pulmonary emboli would have made any material change to the events that occurred.”

The case is yet another example of the difficulty of proving causation in failure to warn cases where the risk is very small indeed.  Whilst breach of duty may be established, it is another thing to have confidence that a patient will establish causation unless there is good reason to argue that, despite the low probability of such risk, it would have been decisive in altering the patient’s decision to undertake the relevant treatment.