Abstract
Doctors in the UK may be reconciled to the fact that they can be held liable for failing to warn patients about complications associated with procedures. They nevertheless might reasonably assume that their liability will be confined to situations where there has been a failure to warn about an inherent complication that subsequently occurred. It might therefore also be assumed that, where a doctor has properly warned the patient about the risk of the complication, the patient cannot seek to recover but this short paper describes several overseas cases where doctors have been held liable in these situations and postulates why courts in the UK may be attracted to this extension of liability.
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References
1.
[2004] UKHL 41; [2005] 1 AC 13.
2.
Normally a plaintiff is required to prove that, if it were not for the defendant's negligence, then the damage would not have happened. But in this case, the patient was not required to prove that she would not have had the operation if she had been warned.
3.
This last circumstance arises from the House of Lords’ decision in Bolitho v City and Hackney Health Authority [1997] 4 All ER 771, which modified the principle in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. In the former case, their Lordships suggested that there may be cases where courts are entitled to depart from a relevant body of medical expert opinion.
4.
(1990) SLT 444.
5.
(1990) SLT 444 at 447.
6.
[1980] 2 SCR 880.
7.
[2012] NSWCA 82.
8.
The issues in the case had to be dealt with in accordance with the Civil Liability Act 2001 (NSW).
9.
464 F 2d 772, 150 U.S.App.D.C. 263 (1972 ).
10.
464 F 2d 772, 150 U.S.App.D.C. 263 (1972 ) at [24]-[25].
11.
3 A 3d 673 (Pa.Super, 2010).
12.
3 A 3d 673 (Pa.Super, 2010) at 28.
13.
This notion of proximity also informed the reasoning of the majority of the New South Wales Court of Appeal in Wallace v Kam [2012] NSWCA 82.