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Fiona Campbell

- 15 May 2020
  • Medical Negligence

  • Personal Injury

Can I sue my doctor for failure to warn that my medical treatment could go wrong?

Some medical injuries are caused because a health  professional fails to properly warn of the consequences of a medical treatment going wrong

Occasionally, medical treatment doesn’t go as planned. While some post-treatment issues are minor, other issues can be devastating, with long-term consequences. For example:

  • Infections or deep vein thrombosis (DVT) following surgery
  • Allergic reactions to anaesthetic
  • Vaginal tearing during natural labour

We often refer to these types of issues as poor outcomes.

If you’ve experienced a poor outcome from medical treatment, you may feel that your doctor or health care professional failed to warn you of the risks. It’s worth investigating whether you can make a legal claim for medical negligence, especially if the outcome has affected your ability to earn an income, care for your family or enjoy a reasonable quality of life.

Medical treatment and medical negligence claims

If you’re considering making a legal claim for medical negligence, it helps to know a little bit about how these claims work. It’s necessary to establish that:

  1. The doctor or health care professional owed you a duty of care
  2. They breached theduty of care
  3. The breach of duty of care caused your injury, loss and damage

There must be evidence to prove each of these elements. Otherwise, your claim will fail. As your lawyers, we gather the evidence on your behalf and advise you about all aspects of your legal claim.

Breach of duty of care and medical treatment

Your situation must satisfy three criteria to establish that there was a breach of duty of care:

  1. We must prove that there was a significant risk that the medical treatment would cause your injury (known as a material risk)
  2. We must then prove that you were owed a duty of care
  3. Finally, we must prove that the duty was breached because you weren’t provided with an appropriate warning

We will also need to gather evidence, including:

  • Doctors’ notes and reports
  • Any information booklets, brochures or similar documents which were provided to you by the doctor or health care professional
  • Witness testimonies from:
    • You
    • The doctor or health care professional
    • Any witnesses to the pre-procedure consultation between you and your doctor or health professional

If we can establish a breach of duty of care because you didn’t receive a proper warning, we can move onto the element of causation.

Causation and medical treatment

To establish causation, we need to prove that if you’d received appropriate advice, the outcome of your medical treatment would have been different because:

  1. You would have decided not to have the treatment; and
  2. Without the treatment, you wouldn’t have suffered the injury, loss and damage

This concept is known as causation. It’s the relationship between cause and effect.

It’s difficult to prove causation, so we will carefully assess your claim against all the evidence. This will help us work out whether you’re likely to succeed if you decide to make a formal legal claim in a court.

South Australian causation case

In 2019, the South Australian Supreme Court heard a case which is a useful illustration of the difficulties in proving causation.

In the case, a pregnant woman had engaged a midwife to assist with a home birth. Sadly, the baby died.

The Judge had to decide whether the midwife had given the mother an appropriate warning about the risks of home birth. The mother claimed that the midwife hadn’t warned her, and if she were aware of the risks, she would have chosen to give birth in a hospital. The midwife claimed she gave an appropriate warning.

The Judge decided that even if the midwife had warned the mother about the risks, she would have still chosen a home birth, mainly because of her previous unpleasant hospital experience and her fear of ultrasounds. The Judge said:

[The mother] read extensively on the topic of home births and her internet searches reveal reference to unicornuate uterus, breech birth and vaginal birth after caesarean. She was prepared to brush aside the knowledge that the [midwife] was an unregistered midwife and brush aside the fact that she was under investigation in the Coroner’s Court.

The Judge went on to say:

In the circumstances I would not be able to find that even comprehensive advice given to [the mother] by the [midwife] about the risks for her of a home birth would have dissuaded her from it. On the contrary, I am persuaded that, had the [midwife] told her that, due to the risks involved she would not be prepared to act as her ‘birth advocate’, [the mother] would have simply looked elsewhere. 

The Judge decided there wasn’t a connection between the standard of care provided to the mother and the death of the baby.

It was a difficult decision about a tragic event. It shows how difficult causation issues can be. However, before you consider whether your legal claim may be successful, you should get in touch with us to discuss your situation.

Our thoughts

Medical negligence claims which arise from failure to warn are often difficult and hard-fought. But sometimes, they’re worthwhile. Making a claim can make a significant difference to your quality of life and how you provide for your family.

If you’re wondering whether you have a claim, you need to be aware that time limits apply. Contact us as soon as possible while the facts are fresh in your mind. We’ll arrange an obligation-free first interview with you, in which we’ll discuss our no-win-no-fee arrangement.

By Fiona Campbell, Associate

Fiona works in all areas of personal injury law, including medical negligence claims and class actions. Fiona’s attention to detail and her sensitive handling of her clients’ claims have earned her a reputation as one of Adelaide’s finest up-and-coming injury lawyers.