Tort Law – Duty of Care – Breach of Duty
Facts: The Plaintiff, named Whitaker in this case, became blind in her right eye at nine years of age. When Whitaker reached the age of forty-seven, she went to see the Defendant, Rogers who is also an ophthalmic surgeon, to operate Whitaker’s right eye. Rogers performed a cosmetic surgery on Whitaker’s right eye, he emphasised that there was a good chance that a significant sight will be restored to Whitaker’s right eye. Essentially, Whitaker asked Rogers questions the risks involved with the surgery and about possible complications affecting her right eye, BUT, Whitaker did not ask Rogers if any complications might affect her left eye – in fact, there was a small risk, about 1 in 14,000 of sympathetic ophthalmia causing blindness in the Whitaker’s good eye.
Even though Rogers was aware of such risk, he did not mention it to Whitaker. As a result of post-surgery, Whitaker suffered sympathetic ophthalmia and was blinded in her left eye. The evidence established that there was a considerable body of medical opinion to the effect that an ophthalmic surgeon, should only advise a patient of the risk of sympathetic ophthalmia if the patient specifically asked about the possibility of a risk to the good eye (i.e. left eye) as a result of the surgery on the bad eye (i.e. right eye).
Holding: On appeal to the High Court, the High Court applied the ‘Bolam’ test. This test is applied in circumstances of diagnosis and treatment – but should not be applied in cases involving the provision of medical advice from doctor to patient. In applying the Bolam test, the court asked the following questions:
If a patient asks a direct question about the possible risks or complications, the making of the enquiry would logically be of little or no significance. Medical opinion determines whether the risk should or should not be disclosed, and the express desire of particular patient for information or advice, does not alter that opinion or the legal significance of the opinion.
The existence of shortcoming suggests that an acceptable approach in point of principles should recognise and attach significance to the relevance of a patient’s questions.
In a non-disclosure of risk and the provision of information and advice – the Bolam principle has been discarded, and rather the Courts have adopted the principle that while evidence of acceptable is the appropriate standard of care after giving weight to the “paramount consideration that a person is entitled to make his/her own decisions about his/her life”.
This was an important judgment set in motion to determine a doctor’s duty to warn patients of a material risk inherent in a proposed treatment. Based on the fact that Whitaker asked Rogers many questions and expressed concerns during the consultation period, it was reasonable for her to be concerned about her good eye (i.e. left eye) about a condition that is quite rare. Therefore, the High Court dismissed Rogers appeal and the High Court’s reasoning was fixed on the material risk of this case and that “a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it; or if the doctor is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it” – i.e. material risk should be taken into account and anything of a risky nature, is reasonable.