Doctors have a duty to warn you of inherent risks involved in a procedure. A doctor’s duty to warn of inherent risks is to protect you from injury that is unacceptable.
If for example, you underwent a surgical procedure relating to your spine. The doctor would have to warn you of the inherent risks such as nerve damage and paralysis.
However, if one of these risks eventuated (you suffered nerve damage for example) and your doctor did not warn of the risks the doctor could be said to have breached his duty of care to you.
However, you must then prove that had the doctor warned you of the risk of nerve damage, you would not have gone ahead with the operation. If you would have gone ahead with the procedure despite being informed of the risks than the failure to warn could not be said to have caused the injury.
In summary, the following must occur:
- Doctor fails to warn of the risks;
- the risk eventuates; and
- had you been warned of the risk, you would not have proceeded with the procedure.
The underlying policy behind the court only providing protection for failure to warn of risks which eventuate is that liability should not extend to harm from risks that the patient was willing to hazard.
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114
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