Duty to Disclose Medical Errors

PUBLISHED 30 May 2013

Healthcare Professionals and healthcare organisations have a duty of care to inform patients about harm caused as a result of medical treatment.

In New South Wales healthcare professionals can be found to have breached their duty of care to a patient if they fail to disclose an error to a patient. Wighton v Arnot [2005] NSWSC 637.

A surgeon who had operated on a patient on three separate occasions was found to be negligent because he did not inform the patient following the third operation he suspected he had severed a nerve in her neck during the surgery.

After the surgery the patient could not to lift her right arm or use it normally and she remained in pain. At her post operative visit three months later the patient was left with a permanent disability and by this time it was too late to perform corrective surgery. It was not the doctors duty to perform the corrective surgery as this was outside his scope of expertise, however, he should have referred her to the appropriate practitioner for assessment and possible repair of the nerve.

The Court found the doctor had documented in the patients clinical notes he suspected he may have severed the nerve. The Court said the doctor was negligent in two areas. Firstly, he breached his duty to the patient by failing to exercise due care by not performing the appropriate tests in between the surgery and the following days while the patient was still in hospital. Secondly, he did not tell the patient of his suspicions that he may have severed the nerve. The patient was awarded the sum of $758,910.36.

The doctor was not found to be negligent for severing the nerve but rather his medical negligence lay in his failure to act on his suspicions and take appropriate steps to confirm these. The damage to the patients arm may have been preventable if the doctor had disclosed the error and acted. The opportunity for the patient to have corrective surgery was lost.

Open disclosure of an adverse event that has caused harm to a patient is now mandatory policy within the NSW Ministry of Health and should be accompanied with an apology by the doctor and or the facility. An apology is not an admission of guilt or liability and cannot be used or interpreted as a determination of fault or liability by the court under ss67-69 of the Civil Liability Act (2002) NSW.

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