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

Feb 16, 2023 | Publication

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 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 Lawyers to speak to an experienced compensation lawyer.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

New Coercive Control Laws in NSW as of 1 July 2024

From 1 July 2024, coercive control will be a crime in NSW when a person uses abusive behaviours towards a current or former intimate partner with the intention to coerce or control them. The Crimes Legislation Amendment (Coercive Control) Act 2022makes it an...

Key Rules on Discovery Procedures for Prospective Defendants

Rules 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 (UCPR) provide essential guidelines on discovery aimed at identifying or locating prospective defendants. These rules are instrumental in the pre-litigation process, ensuring that applicants can gather...

5 Ways A Director Can Be Sued

Directors can be sued for all sorts of reasons.  Here are 5 of them. Reason #1: Insolvent Trading A director can be sued if the company he or she is a director of trades whilst insolvent.  A director has a duty to prevent the company trading and incurring...

7 Ways to Enforce a Judgment

After a judgment is obtained for an amount of money, there are numerous options open to a judgment creditor in relation to how to enforce the judgment (i.e. how to obtain the money which is owed pursuant to the judgment). Option #1: Issue a Bankruptcy Notice If the...

Who Can Bring a Compensation to Relatives Claim?

In the unfortunate event of a loved one's passing due to negligence or wrongful act, the Compensation to Relatives Act 1897 in New South Wales outlines the parameters for pursuing compensation on behalf of the deceased. Understanding who has the legal standing to...

10 Myths of Being Sued

If you or your business are sued, there are many myths about how the legal process will pan out.  Here are 10 myths about the legal process – all are incorrect. Myth #1: The matter will definitely go to a hearing Most matters settle before a Judge decides...