The Western Australia Court of Appeal recently placed limits on a surgeon’s duty to warn of the potential consequences of surgery.

In May 2001 Mr Heath, a surgeon, performed bowel surgery on Mr Hammond, during the course of which Mr Heath found it necessary to repair a bowel protrusion caused by previous surgery. He did this by inserting a mesh commonly used by surgeons to repair hernias.

Despite the surgery, Mr Hammond continued to be unwell and as a consequence Mr Heath performed two further sets of abdominal surgery in August 2001, but did not remove the mesh inserted in the May surgery.

In February 2003, Mr Hammond had further abdominal surgery performed by another surgeon, Mr Hool. During this surgery, Mr Hool found a fistula (an abnormal passage) which was associated with the mesh. During the course of the surgery, Mr Hool was able to remove some but not all of the mesh, which had become incorporated into the fistula. Mr Hammond made a reasonable recovery, but continued to suffer further symptoms of abdominal pain which he partly attributed to the presence of the mesh.

Mr Hammond sought damages from Mr Heath and Mr Heath’s employer, the WA Minister for Health. He was unsuccessful at first instance in the WA District Court, and appealed the WA Court of Appeal. On appeal, the following allegations of negligence were pressed:

  • Failing to remove the mesh during the August 2001 surgery.
  • Failing to warn Mr Hammond of the risks of maintaining the mesh in place after the May 2001 surgery.

The WA Court of Appeal dismissed the appeal unanimously. It found that the evidence supported a finding that Mr Heath’s actions in inserting the mesh in May 2001, and not removing the mesh August 2001, were not inappropriate (and indeed, were advisable).

With regard to the failure to warn allegation, the Court of Appeal held that, while a medical practitioner may have a duty to warn a patient of the risks associated with leaving a surgical appliance in place, for such a duty to exist the circumstances must warrant such a warning to be given at the time of the surgery. In relation to this, the Court found that leaving such mesh in place was commonplace and accepted surgical practice. Further, the evidence indicated that in neither May 2001 nor August 2001 was there evidence to suggest that allowing the mesh to remain in place would reasonably give rise to any adverse risk to Mr Hammond.

The Court of Appeal’s decision suggests that a surgeon’s duty to warn is limited to providing warnings on issues which can be reasonably foreseen by the surgeon at the time of surgery, rather than issues which might have a remote possibility of occurring in the future.

Hammond v. Heath [2010] WASCA 6