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Freckelton, Ian --- "The new duty to warn" [1999] AltLawJl 4; (1999) 24(1) Alternative Law Journal 17

The reasons include the imprecision of, and uncertainty about, some medical conditions; the progressive nature of others; the complexity of modern medical practice and technology; and the fact that some mistakes, serious enough in themselves, have no untoward results which can properly be attributed to them. [at 546]

The Court applied its decision in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 523 that the question of causation is one of fact to which common sense must be applied in the context of any particular case. Generally a causal connection is established if it appears the plaintiff would not have sustained the injuries complained of had the defendant not been negligent. The ‘but for’ test was rejected in March v Stramare as a comprehensive and exclusive criterion. Gummow J in Chappel v Hart summed up its complex, contemporary relevance to medical negligence cases as follows: ‘the results which are yielded by its application properly may be tempered by the making of value judgments and infusion of policy considerations’. He pointed out that, in some cases of failure to warn by a medical practitioner, to apply the ‘but for’ test without qualification could lead to ‘absurd or unjust results’.[3] Gaudron J found the common sense test applied both to whether a particular act or omission caused any damage at all and to whether some particular damage resulted from the act or omission in question.[4]

The most substantial analyses of the law of causation were those of Kirby J who formed part of the majority and of McHugh J who dissented. They had much in common. Kirby J’s decision is likely to be highly influential in the future. He held:

  • It is necessary to remember the purpose for which the law examines causation, namely for the assignment of liability to one person to pay damages to another.
  • Causation is essentially a question of fact to be resolved as a matter of common sense. This means: ‘there is usually a large element of intuition in deciding such questions which may be unsusceptible to detailed and analytical justification’ (at 544).
  • If, but for the negligent act or omission, the actual damage suffered by a plaintiff would not have occurred, it will often be possible, as a practical matter, to conclude the issue of causation in the plaintiff’s favour. Similarly, where the damage would probably have happened anyway, it will often be possible to conclude the act or omission was not the cause for legal purposes. The ‘but for’ test is relevant but is not the exclusive or a sufficient test.
  • It is a precondition to recovery of damages for an established breach of a legal duty that the onus is on the plaintiff to prove that the breach alleged was the cause of the damage shown. The questions of liability and damage must be kept separate.
  • In certain circumstances, the apparent causal connection between the breach and the damage, arising from the ‘but for’ test and the proximity of the damage is displaced by proof that:
  • (a) the happening of the damage was purely coincidental and had no more than a temporal connection with the breach;

    (b) the damage was inevitable and would probably have occurred even without the breach;

    (c) the event was logically irrelevant to the actual damage which occurred;

    (d) the event was the immediate result of unreasonable action on the part of the plaintiff; or

    (e) the event was ineffective as a cause of the damage, given that the event which occurred would probably have occurred in the same way even had the breach not happened.
  • In judging the performance of a health care or other professional, the law does not require perfection, instead recognising a variability of professional skills.
  • In considering the consequences of a failure by a medical practitioner to warn of a procedure’s risks, the question is what the patient’s response would have been had proper information been given.
  • The evidentiary onus may shift during a hearing. Once a plaintiff demonstrates a breach of duty has occurred which is closely followed by damage, a prima facie causal connection is established. It is then for the defendant to show the plaintiff should not recover damages.
  • In some circumstances a plaintiff may recover as damages the value of a lost chance caused by the negligent act or omission.
  • Any damages which a defendant should pay for the harm it has caused are limited to the proportion actually attributable to its breach. If, independently of the breach on the part of a defendant, the evidence shows the plaintiff would have suffered loss, the damages may be reduced by reference to the estimate of the chances this would have occurred. If they are less than 1% they may properly be disregarded as ‘speculative’ and no damages would be payable.

The consequences of this analysis are that considerable scope remains for the operation of policy considerations, which can be differently interpreted, such as the location of fault, in determining whether a particular medical practitioner caused an injury which ensued from a medical intervention.

The relevance of medical opinion in negligence cases

In the aftermath of Rogers v Whitaker it is clear that medical opinion will have only a modest role to play in determining whether a given health care practitioner has acted negligently in giving advice about the risks of treatment. In respect of the negligent provision of treatment, Gaudron J in Rogers v Whitaker (at 493) and Gaudron and McHugh JJ in Breen v Williams (1995) 186 CLR 71 at 114, as well as Kirby P in Lowns v Woods (1996) Aust Torts Rep 81-376 all appear to reject the Bolam test as the criterion for negligent provision of treatment. Another line of authority exists in Victoria where it has been held that given that the test for negligence in treatment is whether a practitioner has exercised reasonable care and skill, the criterion will generally be determined by the views of medical practitioners on the subject. This is because ‘in many cases, the manner of treatment is a matter of professional judgment upon which competent opinion may vary’: O’Keefe v Rosen, unreported, Supreme Court of Victoria, 13 March 1998 per Byrne J; see also Howarth v Adey [1996] VICSC 4; [1996] 2 VR 535 at 647 per Winneke P. The result has been held to be that a plaintiff must establish on the balance of probabilities not only that there is a body of competent medical opinion which would not have performed the procedure as the defendant doctor did, but that no body of competent medical opinion would endorse the treatment provided by the practitioner.

The distinction between the two lines of authority is fundamental and irreconcilable. While the orientation of the majority judgments in Rogers v Whitaker and Chappel v Hart appears to support the proposition that the relevance of medical opinion and practice in treatment as well as provision of advice is limited, it leaves uncertainty in the law. The health care practitioner is in a cleft stick in assessing the use to be made in any particular situation of the existence of a body of responsible medical practice in relation to treatment. For consumers, there is a risk too that the continuing authority of the exculpating notion of ‘a respectable body of medical opinion’ will deprive them of legal redress if the treatment they receive and by which they are injured falls within such a category but otherwise is lacking in terms of its quality.

Information about a proposed procedure

In Rogers v Whitaker the High Court gave limited guidance about the extent of the information a health care practitioner is obliged to provide to a patient about a proposed procedure. This is problematic for patients and health care professionals alike. It is clear information must be supplied in ‘broad terms about the nature of the procedure’ it is proposed the patient undergo. Where do broad terms stop and specifics start? Does the patient have to be told the site of the incision, which of three options the surgeon is likely to adopt when the malignancy can be visualised, what the surgeon will do in terms of obtaining grafting material? There is an urgent need for guidance for medical practitioners in terms of the level of ‘broad’ information they are expected to provide.

The remoteness of risk

What are the characteristics of the ‘reasonable patient’ in the context of what they would want to know about risks? It appears the health care practitioner does not need to inform of a remote risk, but the greater the seriousness of the adverse consequence, even if it is relatively remote, the more likely it is the patient will need to be told about it. Gaudron J in Rogers v Whitaker proposed that the kinds of risks of which advice needs to be provided are ones that are ‘real and foreseeable’, not ones that are ‘far-fetched or fanciful’ (at 494).

Where a patient is particularly anxious, as both Mrs Whitaker and Mrs Hart were, although not pathologically so, the obligations of the practitioner become greater to advise of remote possibilities. How remote, though? Surely not much more remote than one in 14,000 or the remote chances of damage to laryngeal nerve damage, scarcely recognised within medical textbooks, that were raised in Chappel v Hart? It is impossible from the judgments to say. The concept of a ‘material risk’ is potentially dramatically elastic in the context of an especially anxious or emotionally labile patient. This leaves patients with unclear rights to information about risks and healthcare practitioners with a heavy onus indeed to advise patients of an unclear gamut of adverse consequences to which they think the particular patient would (not might) be likely to attach importance. What can be said with confidence is that though the exercise in which the practitioner is required to engage is inherently predictive, they are not required to engage In mind-reading.

What of the communication process? The information imparted must also be conveyed in a form likely to be understood by the particular health care consumer — a mere printed information sheet is not sufficient. If a patient is not receptive to the ordinary communication of risk by reason of psychiatric illness, intellectual disability, personality disorder or physical illness, the practitioner has special responsibilities. These may not be at all easy to discharge. The majority judgment in Rogers v Whitaker requires communication of the relevant information ‘in terms which are reasonably adequate for that purpose having regard to the patient’s apprehended capacity to understand the information’ (at 490). This means the language used, and the perseverance required of the practitioner will vary according to the difficulties in achieving cognitive and possibly affective understanding (these being potentially quite different) on the part of the patient.

Technical proficiency henceforth will be only part of the health care practitioner’s necessary arsenal of skills. It must be accompanied by sophisticated communication skills, and this is an important step forward for consumers. The onus is on the doctor or other relevant health care practitioner to ensure the patient meaningfully appreciates their options to the point where they are in a position to make a decision about the proposed procedure, informed of the repercussions of agreeing to it or declining it. The doctor must engage in ‘real dialogue’ with the patient.

The ongoing significance of therapeutic privilege

The only exception to the duties of disclosure of risks is the so-called ‘therapeutic privilege’ — where advice about risks would itself endanger the patient. This situation is likely to be regarded by the courts as rare, not applying to people with ‘mere’ personality disorders or normal anxieties, but perhaps extending to those with actual anxiety pathologies (namely, actual psychiatric disorders of morbidity) that deprive them of the capacity to make decisions in their own health interests.

The majority decision in Rogers v Whitaker referred to three categories of especially vulnerable patient: ‘where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient’ (at 490). This is to be distinguished from a patient who is ‘inquisitive, persistent and anxious’ such as Mrs Hart (at 552). The question appears to be whether the provision of information will actually exacerbate the health problems of particularly at-risk patients, not whether it will make the expression of consent to a proposed procedure difficult. The focus is on the health of the patient, not on the convenience of the doctor or other relevant health practitioner or on easing the ‘management problems’ posed by the ‘difficult patient’. It will be rare consumers of health care whose condition will be found by the courts to have warranted such withholding of information. The measures practitioners must take to convey germane information about risks without alienating anxious patients from beneficial procedures will on occasion need to be extensive, sensitive and time-consuming. For some practitioners, this will require new skills and work practices.

Comparative proficiencies

The basis of the High Court’s decision in Chappel v Hart is that Mrs Hart should have been given information about the risks she was running in consenting to the procedure proposed by Dr Chappel to enable her to make a decision informed by relevant data. Gaudron J raised explicitly the issue of the information about the practitioner’s skills and experience that should be provided to the patient. She held there ‘would have been a duty to inform her that there were more experienced surgeons practising in the field’ (at 520). This finding was integral to her decision that given the absence of proper warning of risks of the operation, the failure to provide it meant Mrs Hart was deprived of the opportunity to do what she would otherwise have done — namely, be operated upon later by another surgeon who would run a lower risk of the complications which ultimately ensued. The critical element to her finding is that she explicitly cast upon Dr Chappel a duty not just to advise of the risks inherent in a medical procedure but recognised that such risks are affected by the person who performs the procedure, the practitioner’s level of skill and experience. She found that had Mrs Hart had proper information in this broader sense about the risks that she was running in submitting to the procedure, she would not have taken the chance of being operated on by the comparatively inexperienced Dr Chappel and would have been operated upon by a much more experienced practitioner who would have run a lower risk of perforating her oesophagus and so exposing her to infection and nerve damage. In short, she should have been given specific enough information to enable her to make a comparative evaluation of her options. Gaudron J’s articulation of duty on the part of a practitioner is not explicitly repeated by the other members of the majority in Chappel v Hart but is not inconsistent with their position, nor inconsistent with the letter or spirit of the judgments in Rogers v Whitaker. The real conundrum is what follows in practical terms from such an obligation.

The evidence and the Court of Appeal judgments in relation to the risks of oesophagus perforation and of mediastinitis were unclear. It appears a key witness, Professor Benjamin, a ‘pre-eminent surgeon in the field’ said that ‘depending upon the experience and care with which the surgery is done, it [oesopheageal perforation] could occur as often as one in 20 or 30 or 40 operations’ (at 528, 538-9) but that mediastinitis had never ensued from his operations although he had performed between 100 and 150 such procedures (at 529). Dr Chappel was a surgeon of modest experience in the field, having only himself performed some 6 such procedures.

Gaudron J’s enunciation of duty in Chappel v Hart takes the obligation of the health care practitioner to advise about options a significant step further than had previously been generally contemplated amongst many plaintiff lawyers and consumer advocates. If her view is adopted, as is more than possible, it has important consequences. If the practitioner knows that another (more experienced or more skilful) practitioner may run a lower risk in a procedure, in particular a surgical procedure, they would have to tell the patient. Health care practitioners and insurers may decry this as the onset of lawyer-imposed comparative medicine and the introduction of impossible statistics compilation. However, the intent of the High Court in Rogers v Whitaker and Chappel v Hart is clearly to enable health care consumers to make decisions about procedures informed by significant matters that might bear upon their decision making. Gaudron J’s formulation fits very clearly within such an objective.

Where it leaves health care practitioners in a practical sense is less clear. Chappel v Hart is a good example. There was no indication Dr Chappel was anything other than competent. It was just that a surgeon who gave evidence against him was more experienced in the same area of practice and had, according to him anyway, a higher success rate in relation to the particular procedure. Where does this leave reasonably new surgeons or other practitioners? It appears under the Gaudron J formulation that wherever inexperience on the part of a practitioner may impact on the risks run by a patient, the fact that others may be better at the procedure needs to be disclosed. When would a patient in such circumstances ever want a new surgeon, by contrast with an established authority? The impact of this decision on the profession of surgery may be dramatic. It could be that insurance rates for senior, as against new surgeons, may reduce, while those for newly emerging practitioners may become prohibitive. Certainly, it would make the development of skills by surgeons in particular very difficult. Ironically, this has the potential to be to the detriment of the consumers the decisions are clearly intended to assist.

Hayne J expressed pointed concerns about the track upon which the majority of his colleagues on the Court were venturing. He complained that a comparison would have to be made by a doctor between the risks if the procedure were carried out by him or her and the risks if ‘the best available doctor’ carried it out (at 560-1):

But how would that be measured? Any observer of skilled professionals at work knows that some are better than others but it is equally obvious that the performance of even the best is subject to variation. Is the comparison to be made a comparison with the best performer doing his or her best work? But how is that to be demonstrated? [at 561]

Given the assessment of proficiency is inherently a comparative exercise, the practitioner’s mind, if Gaudron J’s formulation is generally adopted, would have to be directed toward not just his or her own skills, but those of others within their area of practice. How confident could a surgeon ever be about a peer’s success rates? What of the issue of competitiveness between professional rivals? How much of an onus would there be on practitioners to acquaint themselves with others’ success rates and on what basis can these be measured anyway? What if one practitioner is on the rise in terms of proficiency, already starting from a high baseline? What if he or she knows of personal factors in relation to another who happens to be generally regarded as pre-eminent in the field which may detract from that person’s excellence or reliability? Would they be bound to factor this into the advice they give to a patient? And how would the law of defamation interlock with the provision of such advice to patients? It is vital the difficult questions raised by Gaudron J’s formulation of the duty to advise of risk factors be resolved by the High Court so consumers know what they have a right to expect from practitioners and so healthcare practitioners know what they have a duty to communicate.

Presumption of causation

A key aspect of the decision Chappel v Hart was that once a physical injury has occurred to a patient, breach of a duty, such as that to warn of a risk, is treated as materially causing or contributing to that injury unless there is sufficient reason to the contrary. This has very important ramifications in terms of the conduct of medical negligence cases. It effectively shifts the onus in the course of a trial onto the defendant once a breach has been established and injury demonstrated in its aftermath. In Mrs Hart’s case, in the absence of evidence that the breach of duty to warn properly had no effect on her decision to submit to the procedure, or that the injury would have occurred even had the warning been given, the breach of duty was found by Gummow J to have caused the injury (at 535). This could have been negatived by the defendant establishing that the injury would have occurred regardless of the surgical intervention. Dr Chappel was not able to do this. The operation of the presumption as articulated by the Court unequivocally in Chappel v Hart can substantially redefine the balance in medical negligence cases in favour of plaintiffs.

The new generation of health care practice

There can be no doubt the High Court’s decisions in Rogers v Whitaker and Chappel v Hart will make a long-term qualitative change to the style of health service provision and medical practice in Australia. Gaudron J’s formulation of the duty to communicate information about skills and experience in Chappel v Hart may result in a new level of mandated disclosure of information with the potential to be material to health care consumers’ decision making. It may be that the next step will be an obligation on the part of hospitals to disclose information such as random infection rates, assaults by orderlies, and thefts by intruders.

While the obligations of disclosure promise to be difficult to translate into actual situations, the revolution they are initiating is that very soon consumers will have to receive all the information they need before deciding to place their lives in the hands of health care providers and institutions. They will have rights even higher than those which they possess if investing in a listed company or taking financial advice from a broker or an accountant. But then again, what sensible pre-operative patient would not want to know that their surgeon has never performed their operation before and that in the next theatre another surgeon will be available in an hour who has performed it successfully 254 times? In arriving at the formula that should exist for disclosure of medical risks and pertinent information, one cannot ever forget the fundamental point — the stakes for the consumer are higher in the medical context than in almost any other.

References


[1] Russell, ‘Establishing Medical Negligence — A Herculean Task?’, (1998) 3 Scots Law Times 17 at 20-2.

[2] Milstein, ‘Causation in Medical Negligence — Recent Developments’, (1997) 6 Australian Health Law Bulletin 21.

[3] [1998] HCA 55 at para. 66.

[4] [1998] HCA 55 at para. 6.

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