Does your Doctor owe you a duty to disclose an “adverse event” following treatment?

A doctor has a duty to disclose to you an adverse event if the usual practice is for the doctor to disclose the adverse event.

A doctor’s duty to inform patients of treatment that has been given or will be given is integral to the provision of medical care and treatment. As Bryson J once stated “One cannot stick a needle into a person and walk away wordless, as one would with a horse.”

In Wighton v Arnot [2005] NSWSC 637 the plaintiff developed a lump on the right side of her neck requiring multiple surgeries by the defendant. The plaintiff alleged that during the surgical procedures, her doctor severed her right spinal accessory nerve and that his treatment thereafter was negligent in that he failed to inform the plaintiff of his suspicion that he had severed the nerve, and failed to refer the plaintiff to an appropriate specialist. When the plaintiff eventually saw a neurosurgeon, an accessory nerve reconstruction was no longer feasible.

The court found that the treating doctor owed a duty to disclose given his suspicion that he had severed the plaintiff’s nerve as this was a relevant part of the patient’s medical outcome and was a necessary part of reasonable aftercare.

The court also considered that the duty extended to an obligation for the doctor to undertake investigations given an adverse outcome was suspected.

There was no finding that the doctor had been negligent in the performance of the operation generally, nor in severing the nerve. Liability only arose through the failure to disclose the adverse outcome to the patient, where it was usual practice for the doctor to disclose and investigate the suspected adverse event and provide an opportunity for remedial surgery.

If you believe that you were denied a better medical outcome due to your doctors’ failure to disclose an adverse event contact McAuley Hawach Lawyers to speak to an experienced compensation lawyer.

McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826

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