Health Advisory Services Alert
A recent case in the New South Wales Court of Appeal serves as a reminder to all medical practitioners that they should have properly drafted consent forms and other procedures in place to ensure that patients provide their fully informed and voluntary consent to any medical procedure.
On 19 September 2013, the New South Wales Court of Appeal in Paul v Cooke [2013] NSWCA 311 confirmed that a radiologist was not liable where a patient suffered permanent disablement after the materialisation of an inherent risk.
Dr Cooke, a radiologist, negligently failed to diagnose a berry aneurysm in 2003. Surgery was performed on Mrs Paul in 2006 by another doctor. During the surgery, the aneurysm ruptured and Mrs Paul suffered permanent disablement. Mrs Paul sued Dr Cooke for damages resulting from the injuries she suffered after the surgery in 2006, alleging that Dr Cooke's negligence in 2003 was the cause of the injuries.
The NSW Court of Appeal held that the rupturing of the aneurysm was an inherent risk that pre-dated, and was neither created nor increased by, the radiologist's negligent failure to diagnose.
The Court of Appeal said that:
- even if the radiologist had diagnosed the berry aneurysm, Mrs Paul would still have faced the risks of a procedure that she willingly chose to undergo; and
- those risks could only have been avoided had the decision to undergo surgery not been made.
The Court decided that the radiologist was not liable for the materialisation of an inherent risk.
The case naturally focuses on the causation principles in the context of a medical negligence case. But it also notes that Mrs Paul willingly chose to undergo the treatment. This serves as a reminder that a patient should be fully informed of all material risks before deciding whether to receive any form of medical treatment.
Medical practitioners should ensure that:
- they have procedures in place to ensure that patients provide their fully informed and voluntary consent to any medical procedure; and
- properly drafted consent forms are signed by the patient as evidence that fully informed consent was obtained.
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