There have been a lot of ‘failure to warn’ cases where courts have decided that a doctor has a duty to warn patients of the risks associated with treatment, but that there is no liability where the patient admits that they would have undertaken the treatment even if they had been warned.

The High Court has just published its judgment in one such case, with a twist. 

A neurosurgeon proposed spinal surgery on a patient.  The surgeon failed to warn the patient that the two risks associated with the surgery were temporary local nerve damage in the thighs (caused by lying on the operating table for a prolonged period) and permanent, catastrophic paralysis.

The patient underwent the surgery and suffered temporary nerve damage in his thighs.  He sued the surgeon on the basis that if he had been warned about the risk of permanent paralysis, he would not have submitted to surgery and so would not have suffered the lesser condition.

The High Court unanimously rejected the claim.  The evidence was that the patient would have undergone surgery even if he had been warned of the risk of the temporary nerve damage, which eventuated.  So the surgeon had been negligent for not issuing the warnings, but that negligence had not caused the injury.  The injury was a known risk of such surgery, which the plaintiff admitted he would have been prepared to take even if he had been warned about it.  In other words, not warning the patient about the risk of permanent paralysis did not cause the temporary nerve damage in the thighs. 

Courts are adhering strictly to the principle that there must be a clear causal link between a failure to warn and the injury or damage complained about.

Wallace v Kam (2013) 297 ALR 383