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Were you warned? Your Doctor’s Duty

Were you warned? Your Doctor’s Duty 1024 683 liz-birdbrain

Were you warned? Your Doctor’s Duty

In the unanimous High Court decision of Wallace v Kam [2013] HCA 19, the relevant principles of causation and the duty. To warn patients of potential complications prior to a medical procedure being performed were once again highlighted. It was particularly emphasized that all patients have a legal right to make their own medical decisions (as initially proposed in Rogers v Whitaker [1992] HCA 58) and that doctor’s have a similar duty to inform patients about any material risks inherent in any proposed treatment.
The Court also answered the question of causation and posed the further question as to whether a doctor who negligently does not inform a patient about two or more material risks of a procedure would  entitle the patient to compensation should a risk not mentioned materialse.

Find out more about medical negligence. 


Mr Wallace sought medical assistance in relation to a lumbar spine disease and Dr Kam (a Neurosurgeon) performed a surgical procedure on him which was riddled with inherent risks, namely:-

  1. whether temporary local damage to nerves within his thighs (bilateral femoral neurapraxia) could result from the patient lying face down on the operating table for the duration of the medical procedure; and
  2. that there was a chance of permanent and catastrophic paralysis resulting from damage to his spinal nerves.

Dr Kam did not warn Mr Wallace of any of the aforementioned risks.  The risk of bilateral femoral neurapraxia materialised and left Mr Wallace in severe pain for some time.  In this regard Mr Wallace claimed that Dr Kam had negligently failed to warn him of the risks and had he been warned of such risks, he would not have undergone the surgical procedures recommended by Dr Kam and would therefore not have suffered the relevant neurapraxia.

At the Court of first instance it was held that the evidence showed that only the second risk would have prevented Mr Wallace from proceeding with the relevant operation.

On Appeal by Mr Wallace he stated that the Court at first instance had erred in two respects, namely firstly by failing to consider whether a paralysis warning might have lead him not to have the operation at all; and secondly in finding that the only irrelevant breach was Dr Kam’s failure to warn of the risk that in fact materialized.

The majority of the Court dismissed the Appeal and held that the relevant New South Wales legislation, existed so as to protect a patient from unacceptable material risks and where those risks were capable of being separated, a successful recovery could only be made in respect of  risks that were both material and had in fact materialized.

On a further Appeal by Mr Wallace to the High Court of Australia, the findings of the New South Wales Court of Appeal were upheld.   In dismissing Mr Wallace’s Appeal the High Court held that in order to determine causation at common law, a party has to navigate through two very important questions, namely:

  1. as to how the actual harm occurred; and
  2. as to whether there is any legal responsibility which can be attributed to the particular surgeon.

In applying the above, the High Court came to the following conclusion:-

  1. Dr Kam had breached his comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment to Mr Wallace by failing to warn him of the risk of neurapraxia and the risk of paralysis inherent in the surgical operation;
  2. Dr Kam’s breach of duty was a necessary condition of the neurapraxia that Mr Wallace had sustained and with regard to factual causation the Court was satisfied that because Mr Wallace would not have chosen to undergo this surgical procedure and would therefore not have sustained the neurapraxia if he had been warned of all the material risks; and
  3. It was not appropriate for Dr Kam’s liability to extend to the neurapraxia sustained by Mr Wallace in circumstances where he would not have chosen to undergo the surgical procedure had he been properly warned of all material risks, but where he would have chosen to undergo the surgical procedure even if he had been warned of the risk that in fact had materialised.


This decision reinforced the principles of Rogers v Whitaker that a medical practitioner has a duty to warn a patient of all material risks involved in a particular procedure and it continues to indicate that negligence can only be established if a causal relationship exits where the outcome warrants imposing the responsibility for the harm on the medical practitioner. This clearly demonstrates that a medical practitioner will not be liable for damages in negligence for failing to warn about a material risk that does not materialise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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