Liability in negligence and the failure to disclose multiple risks in surgery : I would have been willing to run the risk

Smith, Malcolm K. & Carver, Tracey (2013) Liability in negligence and the failure to disclose multiple risks in surgery : I would have been willing to run the risk. In Australasian Association of Bioethics and Health Law Conference 2013, 11-14 July 2013, Sydney University Law School, Sydney, Australia. (Unpublished)

Abstract

It has been 21 years since the decision in Rogers v Whitaker and the legal principles concerning informed consent and liability for negligence are still strongly grounded in this landmark High Court decision. This paper considers more recent developments in the law concerning the failure to disclose inherent risks in medical procedures, focusing on the decision in Wallace v Kam [2013] HCA 19.

In this case, the appellant underwent a surgical procedure that carried a number of risks. The surgery itself was not performed in a sub-standard way, but the surgeon failed to disclose two risks to the patient, a failure that constituted a breach of the surgeon’s duty of care in negligence. One of the undisclosed risks was considered to be less serious than the other, and this lesser risk eventuated causing injury to the appellant. The more serious risk did not eventuate, but the appellant argued that if the more serious risk had been disclosed, he would have avoided his injuries completely because he would have refused to undergo the procedure. Liability was disputed by the surgeon, with particular reference to causation principles. The High Court of Australia held that the appellant should not be compensated for harm that resulted from a risk he would have been willing to run.

We examine the policy reasons underpinning the law of negligence in this specific context and consider some of the issues raised by this unusual case. We question whether some of the judicial reasoning adopted in this case, represents a significant shift in traditional causation principles.

Impact and interest:

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ID Code: 71709
Item Type: Conference Item (Presentation)
Refereed: No
Additional URLs:
Keywords: Negligence and causation, Informed consent, Liability for disclosure of risks, Multiple risks and liability for negligence, Wallace v Kam
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Tort Law (180126)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Copyright Owner: Copyright 2013 [please consult the authors]
Deposited On: 23 Oct 2014 23:13
Last Modified: 28 Jun 2017 14:45

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