Medical Negligence and the Failure to Advise

Richard
August 30, 2012

Doctors have a duty to inform patients of every risk associated to impending medical procedures to be performed on them. Prior to any form of medical treatment, patients are often instructed on the accompanying risks to such medical treatment and patient consent is largely dependent on knowledge of these risks.

An issue arises when a doctor fails to inform a patient of medical risks. Though a separate cause of action in battery may arise, an important issue at hand lies in a claim for medical negligence.

What do I need to Know?

Typically, when a doctor fails to advise you of the risks associated to medical treatment, the doctor is said to be negligent. Negligence is any act of omission that falls short of a standard of “a reasonably prudent person.” A doctor falls below this standard when he/she does not act similar to other doctors of good standing in the field of medicine. That is, if other doctors would have advised a patient on a particular risk associated to medical treatment then failure of your doctor to advise you of the same risk, results in actions contrary to a “reasonably prudent person”. In the alternative, one can look at this standard as that where “if a doctor reaches the standard of a responsible body of medical opinion, he is not negligent.” Bolam v. Friern Hospital Management

Would You Have Consented To Treatment Had You Known Of The Risk?

The outcome of your case will largely depend on whether you would have consented to treatment had you known of all the risks associated to such treatment.

In Chester v. Afshare, the defendant, a neurosurgeon, advised the claimant to undergo lumbar surgery. After consenting to surgery, she suffered partial paralysis. In this case, the judge found that, although the defendant was not negligent in the performance of the operation, he had failed to warn the claimant of the small risk of partial paralysis inherent in the operation. The judge also found that had she been informed of the risk of partial paralysis, the claimant would not have consented to the operation taking place but would have sought further professional advice before deciding whether to consent to surgery or not.

The fact that the claimant might not have consented had she known of all of the risks led to the court deciding in her favor.

Common Examples:

In the UK, the following claims are common under a theory of medical negligence:

Failure to advise medical risks of cosmetic procedures
Failure to advise medical risks of obstetric procedures
Failure to advise medial risks of treatments
Failure to advise pregnant mothers of health risks
Failure to advise medical risks of surgery

What Do I Do?

Your first step when faced with the aforementioned situation is to put your complaint in writing. Contacting legal counsel will help serve this purpose. Legal counsel will help determine the best course of action based on the evidence available.

Additionally, with the help of legal counsel, you can consider reporting your doctor for ethical violations to the appropriate authorities.