Moving on from Rogers v Whitaker : A time to re

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Dr Bernadette Richards, Law School
Moving on from Rogers v Whitaker : A time to re-define the harm?
Wallace v Kam [2013] HCA 19
Dr Kam is not liable to Mr Wallace for impairment of Mr
Wallace’s right to choose whether or not to undergo the
surgical procedure…
He is not to be compensated for the occurrence of physical
injury the risk of which he was prepared to accept. [39]
(French CJ, Crennan, Kiefel, Gageler and Keane JJ)
University of Adelaide
2
Some comments from Rogers v Whitaker
• Nothing is to be gained by reiterating such expressions as
“the patient’s right to self-determination”
• Oft-used and somewhat amorphous phrase “informed
consent”
• Term informed consent is apt to mislead
• This is not a question of consent
University of Adelaide
3
Two concepts combined
• Information (standard)
• Consent (causation)
• “A patient has a right to determine what
shall be done with his own body“
(Kirby J in Rosenberg v Percival (2001) 205 CLR 434, [142]
referring to Schloendorff v Society of New York Hospital 105 NE 92
at 93 (1914))
University of Adelaide
4
Wallace v Kam [2013] HCA 19
• Sought treatment for condition of his lumbar spine
• Dr Kam performed surgery with two inherent risks:
1. bilateral femoral neurapraxia, and
2. 1/20 chance of permanent and catastrophic paralysis.
• The first risk materialised
• Surgery was unsuccessful
• Claimed negligence on basis of no warning of either risk
University of Adelaide
5
Wallace v Kam [2013] HCA 19
• Harrison J:
– The legal cause of neurapraxia could not be the failure to warn of
the risk of paralysis
• Court of Appeal ( Allsop P, Beazley and Basten JJA)
– Divided in answering that question
• HCA (French CJ, Crennan, Kiefel, Gageler and Keane
JJ): Preferred the majority approach that accorded with
the original decision.
University of Adelaide
6
Wallace v Kam [2013] HCA 19
• Referred us back to Rogers v Whitaker and the test for
materiality.
• Rationale: ‘Making choice and empowering the patient to
avoid a particular injury, the risk of which [the] patient is
not prepared to accept’ [8] (reference to Chester v
Ashfar)
• Emphasised the significance of causation
• Inevitably involves two questions:
– Referring to historical fact
– Normative enquiry (s5D of NSW CLA, s34 of SA CLA)
University of Adelaide
7
Wallace v Kam [2013] HCA 19
• Factual enquiry, 3 possible outcomes:
1.
Would have undergone the surgery even if warned (factual
causation fails)
2. Would not have undergone treatment at all if warned (factual
causation is not problematic)
3. Would have undergone the surgery at a later date (Chappel v
Hart situation) ([18] – [20])
• Legislation explicitly calls for policy consideration:
‘whether or not and why’ liability should be attached
• (s5d(4) CLA (NSW), s34(3) CLA (SA)
University of Adelaide
8
Wallace v Kam [2013] HCA 19
• The critical question, as the Court of Appeal recognised
and on which it divided, is the scope of liability question
posed by s 5D(1)(b). Is it appropriate for the scope of Dr
Kam's liability to extend to the physical injury in fact
sustained by Mr Wallace in circumstances where Mr
Wallace would not have chosen to undergo the surgical
procedure had he been properly warned of all material
risks but where he would have chosen to undergo the
surgical procedure had he been warned only of the risk
that in fact materialised? [30]
University of Adelaide
9
Wallace v Kam [2013] HCA 19
• The policy that underlies requiring the exercise of
reasonable care and skill in the giving of that warning is
neither to protect that right to choose nor to protect the
patient from exposure to all unacceptable risks. The
underlying policy is rather to protect the patient from the
occurrence of physical injury the risk of which is
unacceptable to the patient. It is appropriate that the
scope of liability for breach of the duty reflect that
underlying policy. [36]
University of Adelaide
10
Wallace v Kam [2013] HCA 19
Liability should not extend to harm from risks that the
patient was willing to undergo
University of Adelaide
11
• The duty of a medical practitioner to warn the patient of
material risks inherent in a proposed treatment is
imposed by reference to the underlying common law
right of a patient to choose whether or not to undergo a
proposed treatment [36]
• Policy that underlies requiring the exercise of reasonable
care and skill in the giving of that warning is neither to
protect that right to choose nor to protect the patient
from exposure to all unacceptable risks. The underlying
policy is rather to protect the patient from the occurrence
of physical injury the risk of which is unacceptable to the
patient [36]
University of Adelaide
12
Wallace v Kam [2012] NSWCA 82
• Belief that there were no negative aspects to the surgery
• Lack of understanding of the risky nature of the
procedure
• Of significance: the interrelationship between the nature
and scope of the duty and causation
• Broad view of the nature of the duty to warn
University of Adelaide
13
• Was this a meaningful choice???
University of Adelaide
14
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