What Should a Doctor Tell a Patient?
| Date | 01 September 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb02913.x |
| Author | D. L. Mathieson |
| Published date | 01 September 1965 |
596
THE
MODERN
LAW
REVIEW
VOL.
28
He held that the evidence was insufficient to entitle the jury to
find that the surgeon was in breach of a duty of care to the plaintiff
by reason
of
failing
to
warn him of the risks involved in an aorto-
gram-which the medical witnesses agreed were very slight. The
patient’s specific inquiry, he said, did not enlarge the scope of the
duty that would otherwise be owed. Moreover, the learned judge
felt unable to conclude that the absence of a warning was an
effective cause
of
the mishap, for
“
one can only speculate as to
what he would have done if he had been told the risks were
‘
very
small and the procedure straightforward.’
”
Both conclusions were attacked in the Court of Appeal, which,
in
reversing Woodhouse
J.’s
judgment, emphasised that its decision
was
limited to the situation where a plaintiff made
a
specific inquiry
about the risk involved
in
some procedure.
(‘
On no account,”
said Barrowclough
C.J.,
“
must
it
be thought that we are laying
down any general rule as to what
a
doctor should tell his patient
before performing an operation
or
carrying out an exploratory
procedure.” But the specific inquiry transformed the legal situa-
tion for it then became the doctor’s duty-if he embarked on any
answer at all-to give a careful answer, not merely to offer reassur-
ances, however well intenti~ned.~ There was expert evidence upon
which the jury could find that a properly careful answer to the
specific question asked by the appellant must have involved at least
an intimation that there was some degree of risk.e
Smith
v.
Auckland Hospital Board
is the first reported New
Zealand decision
in
which the decision of the House
of
Lords in
Hedley Byrne and
Co.
Ltd.
v.
Heller and Partners Ltd7
has been
directly applied.s In applying it the court has done little to
resolve the doubts in many minds about the correct way to formulate
the
ratio
of
Hedley Byrne.
T.
A.
Gresson
J.
expresslyYg and the
others implicitly, refused to accept
D.
M.
Gordon’s argument
lo
that
the main discussion by their lordships in that case was all
obiter
on the ground
(inter alia)
that the Bank had expressly disclaimed
responsibility. Understandably, no fresh light is thrown on the
nature of a
banker’s
duty-in the absence of a sufficient disclaimer
is
it
merely to advise honestly,
or
to exercise ordinary care
?
It
was,
8
[is641
N.Z.L.R.
241
at
p.
254.
19651
N.Z.L.R.
191
at p.
197.
Cf.
Turner
J.,
ibid.
at pp.
201, 202;
4$
utchison
‘
J.,
ibid.
at
DD.
209,
212:
McGreeor
J..
ibid.
at
p.
213;
T.
A.
Gresson
J.,
ibid.
at p.
215:
-
5
See in particular T.
A.
Gresson
J.,
ibid.
at p.
215.
6
See Turner
J.,
ibid.
at p.
206.
7
(19641
A.C.
465.
*
It
was
referred to
obiter
in
Poole
v.
Crittall
Metal
Windows
[1964]
N.Z.L.R.
522
at pp.
537, 538
(C.A.), an interesting decision dealing with the liability
of
a supplier
for
inadequate scaffolding.
9
[1965]
N.Z.L.R.
191
at p.
219.
10
D. M. Gordon,
Q.o.,
“
Hedley Byme
v.
Heller
in the
House
of
Lords.”
(1964)
38
A.L.J.
39, 79;
reprinted in
(1965) 2
U.
of
Brit. Columbia
L.R.
113.
Cf.
Stevens,
‘‘
Hedley Byrne
v.
Heller
:
Judicial Creativity and Doctrinal
Possibility
”
(1964) 27
M.L.R.
121, 125.
To continue reading
Request your trial