Informed Consent Cases

Informed Consent Cases are about the failure by a medical practitioner as a result of a breach of duty of care in explaining the pros and cons of a particular surgical and/or medical procedure to a patient. The patient under certain circumstances can argue that they were not provided with proper information to make an informed decision. These cases are basically known as Failure to Advise cases.

This is a complex area of law as it not only involves a general issue about the facts provided by a medical practitioner to his patient but also involves the legal principle of “causation”. Did the ultimate failure to provide the appropriate advice involving the risks associated with the procedure ultimately cause the damage to the patient? Not only do you need to establish that the failure to provide information would have materially caused the patient to avoid a type of medical procedure that occurred, a Plaintiff must also establish that on the balance of probabilities the damage from which they suffered occurred. You need to establish greater than 50% probability being the legal standard of proof in civil cases, namely that it was more probable than not that the breach of duty caused the damage.

The Court is concerned with the question of what would have occurred if the Defendant doctor had complied with his duty to provide sufficient information so that a patient could make a decision as to whether they wish to take that course of medical action.

Interestingly there is a duty on a medical specialist to not only inform his patient, the Plaintiff, accurately and adequately about certain treatment as to its pros and cons but he also has an obligation it would appear from a recently decided case of Papa – v – Sullivan Nicolides Pty Ltd to advise the patients general practitioner and other treating doctors as to the ongoing needs of the patient/Plaintiff so that the patient can then be treated by others doctors of which the medical specialist is aware.

Our Medical Negligence Lawyers at Gerard Malouf & Partners recently ran a claim in the High Court involving a patient’s allegation that they were not provided with informed consent. Whilst the High Court ultimately rejected the Plaintiff’s claim the facts that are relevant are that a medical practitioner has a duty to warn a Plaintiff of all material risks. If the medical practitioner does not warn of a material risk and that material risk eventuates and the patient/Plaintiff ultimately suffers injury then arguably the case of a failure to provide informed consent can be made out against the medical practitioner.

A risk is considered material if it is one which a reasonable person in the Plaintiff’s position is likely to have attached significance or one that the medical practitioner knows or reasonably have known that that particular patient is likely to have attached significance in choosing whether or not to undergo certain medical treatment. In establishing a Defendant doctor’s liability to pay a patient/plaintiff in negligence a Plaintiff/patient must prove that the Defendant owed them a duty of care and that the duty was breached and that the breach of that duty caused damages greater than on the balance of probabilities, that is greater than 50% chance that the damage has occurred due to this breach.

As you can see this is a complex area of law and one that our firm specialises in running many hundreds of medical negligence claims each year successfully against doctors, hospitals and medical providers in Australia.