Informing Patients and Making Decisions

Journal of Bioethical Inquiry (2013) 10:139–143

U. of Adelaide Law Research Paper No. 129

Posted: 22 Oct 2018

See all articles by Bernadette Richards

Bernadette Richards

University of Adelaide - School of Law

Date Written: October 18, 2018

Abstract

What happens if a patient is not warned of a material risk that does not materialise but another, lesser risk does? Can the failure to warn the patient of the more severe risk be said to have caused the manifestation of the lesser risk if the patient can establish that he or she would not have proceeded with the surgery if he or she had been fully and appropriately warned? This is the nature of the question raised (and answered) in Wallace v Kam[2012] NSWCA 82. In this instance Mr. Wallace underwent a spinal fusion to alleviate pain caused by a disc protrusion in his lumbar spine.After the surgery he developed bilateral femoral neurapraxia (local nerve damage) to the thighs. He was not warned of the risk of neurapraxia, but the trial Judge concluded that, even if he had been told, Mr. Wallace would have proceeded with the surgery. Causation with respect to the neurapraxia was therefore not established.A second risk described as a 5 percent chance of profound paralysis was also overlooked. The appellant argued that he should have been told of this risk as well and that, if he had been warned, he would not have proceeded with the surgery and therefore would not have suffered the other harm.The trial Judge concluded that this was not a legally relevant risk,as it did not manifest, and therefore declined to pursue it further. The issue on appeal was whether this approach was correct, with the appellant claiming that the trial Judge erred in deeming this risk to be legally irrelevant.

Keywords: consent, capacity, infromation, treatment

JEL Classification: K00, K30, K32, K39

Suggested Citation

Richards, Bernadette, Informing Patients and Making Decisions (October 18, 2018). Journal of Bioethical Inquiry (2013) 10:139–143 , U. of Adelaide Law Research Paper No. 129, Available at SSRN: https://ssrn.com/abstract=3269051

Bernadette Richards (Contact Author)

University of Adelaide - School of Law ( email )

Adelaide, South Australia 5005
Australia

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