Court of Appeal decision discussing the circumstances surrounding the duty to warn patients of material risks
In the recent matter of Biggs v George  NSWCA 113, in which we acted, the Court unanimously overturned the decision in the District Court that the defendants, a surgeon and hospital, were negligent in failing to warn a patient of the material risk of facial nerve injury associated with surgery to remove an acoustic neuroma.
Most of the decision relates to errors in the factual findings the trial judge made to dismiss the relevant warning provided by three doctors on four occasions.
The decision confirms that medical practitioners have a duty to take reasonable care to ensure that material risks are conveyed to patients. It rejects the suggestion that a doctor must take special steps to ensure a patient understands, or that the patient understands an interpreter. The Court of Appeal rejected the 16 step consent process outlined by the trial judge, and other onerous assertions about the process of ensuring informed consent is obtained. It rejected the finding that the defendant bears an onus to call an interpreter to give evidence to resolve a contest in witness accounts of the discussion and acknowledges that there would be problems with the admissibility of evidence from an interpreter stating whether a patient had understood what had been explained to them. The Court rejects the suggestion that the surgeon falsely certified the consent form, and notes that such a serious allegation should not have been made without that allegation being put to the surgeon.
The Court of Appeal also found the factual evidence did not allow a finding of causation to be established.
The Court of Appeal also made helpful comments clarifying the reasonable witness expenses payable following compliance with a subpoena. It clarifies that even though the subpoena must nominate the first day of the hearing, the expert cannot charge from that date if expressly told they will not be required on that date. It clarifies that absent direct evidence as to the expert’s actual financial loss for the time spent in Court, the schedule of expert fees prepared jointly by the AMA and Law Society, is a good guide. It confirms the compensation payable by the party who issues the subpoena is not for preparation, only the time giving evidence. The decision clarifies how the rules should be approached with respect to costs.
If you have any queries regarding this particular decision or the circumstances surrounding the duty to warn patients of material risks please do not hesitate to contact the TressCox Health & Aged Care Team.
Kate Hodgkinson, Associate