Taking the Consequencies for Failure to Warn of Medical Risks

Date01 March 2000
Published date01 March 2000
Taking the Consequences for Failure to Warn of Medical
Marc Stauch*
One scenario that recurs often in medical malpractice litigation is that of a so-
called ‘failure to warn’. In this type of situation, the patient alleges that the doctor
is in breach of his duty of care not in terms of the quality of the physical care
provided, but rather in his earlier failure to disclose the inherent risks of treatment.
Because the courts insist that, once the patient is informed of the broad nature of
treatment, any complaint that the information given was otherwise inadequate
belongs in negligence,1the task remains for the patient of proving causation. The
considerable difficulties that may arise in relation to this latter requirement
recently exercised the Australian High Court in the case of Chappel vHart.2
The facts and decision
Mrs Hart was referred to Dr Chappel, an ear nose and throat specialist, in 1983
with a persistent sore throat and experiencing difficulty swallowing. He diagnosed
a pharyngeal pouch in her oesophagus and recommended surgery to correct it.
However, he failed to advise her of the (small but known) risk that her oesophagus
might be perforated during the operation and that this could lead to infection and
damage to her vocal cords. In the event, and despite the exercise of due care by Dr
Chappel in performing the surgery, this risk materialised and left her with serious
voice loss. Mrs Hart brought an action against Dr Chappel in the Supreme Court of
New South Wales, pleading both breach of contract and negligence, and was
awarded damages by the trial judge of (Aus)$172,500. Following the dismissal of
Dr Chappel’s appeal to the New South Wales Court of Appeal, he appealed to the
High Court. The latter by a narrow majority (Gaudron, Gummow and Kirby JJ;
McHugh and Hayne JJ dissenting) upheld the decision of the lower courts.
The breach of duty
The trial judge accepted Mrs Hart’s evidence that she had expressed concern to Dr
Chappel about the possibility of voice loss,3and all of the judges in the High Court
agreed that the latter had breached his duty to advise her of such a risk. As
Gummow J noted, in the light of the Court’s own previous decision in Rogers v
Whitaker 4the doctor has a duty to warn a patient of a ‘material risk’ inherent in a
proposed treatment and ‘a risk is material if, in the circumstances of the particular
ßThe Modern Law Review Limited 2000 (MLR 63:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 261
* Law School, The Nottingham Trent University.
1 An English case in point is Chatterton vGerson [1981] QB 432, but the same approach applies
throughout the common law world. By contrast, if the patient is unaware of the broad nature of
treatment, the appropriate action will be in battery.
3 Apparently she had told Dr Chappel that she did not want to ‘wind up like Neville Wran’, a reference
to an Australian politician who had the misfortune to suffer voice damage following a similar
4 (1992) 175 CLR 479.

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