In medical negligence claims there are commonly allegations by patients of a failure to advise of the potential for adverse outcomes. Whilst it has long been the case that there is no room for paternalism in medicine such as “doctor knows best”, it is often difficult to pinpoint exactly how much information is required before it can be said that the duty to disclose material information has been satisfied.
In relation to adults a person is entitled to be given relevant information and consent must be obtained before treatment is provided. The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in undergoing the recommended treatment and of alternatives that may be available.
In a claim for medical negligence there may be an allegation that there was a failure to warn the patient that they were not a suitable candidate for the particular surgery, that alternatives were available, or that the procedure was not going to achieve any significant benefits and had the patient known of the high risk of treatment they may have gone to a more experienced doctor.
Often doctors, being time poor, will rely on brochures that detail the particular treatment or surgery without providing lengthy explanations. In those circumstances, is the brochure adequate? Does the brochure, with a short instruction by the doctor to read it, sufficiently discharge their duty?
In a recent case where a patient suffered injury as a result of surgery that went wrong, the court found that the patient was adequately warned and had taken all the information into account which included the provision of an information brochure. In that case, the Judge held that it was not the obligation of the surgeon to refer in scientific terms to possible medical or psychological changes to a patient following the surgery and the duty is not fulfilled by bombarding the patient with technical information which he or she cannot reasonably be expected to understand.
The obligation is instead to refer, in an easily comprehensible way, what the patient might be exposing themselves to in terms of risks or what they might possibly experience in the nature of side effects.
It will often be the case however, that patients simply do not read brochures expecting the doctor to highlight important risks. Not reading information sheets provided to you in those circumstances appears to be at the patient’s own risk. As in other areas of the law it is always important to read the fine print!