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Cite as: April 2014 88 (04) LIJ, p.63

Duty to warn by medical practitioners

Odisho v Bonazzi [2014] VSCA 11 (unreported, 18 February, 2014, S APCI 2012 0089, Nettle, Beach JJA and McMillan AJA).

The appellant complained that her pulmonary emboli was caused by the respondent gynaecologist’s negligence in failing to provide her with an appropriate warning as to the side effects of a drug, tranexamic acid (the drug), used to treat abnormally heavy bleeding.

At first instance in the County Court, the appellant’s claim was dismissed. The trial judge concluded:

(a) the exercise of reasonable care on the part of the respondent did not require her to warn the appellant that taking the drug carried with it the risk of thromboembolic events;

(b) the appellant had failed to establish that the tablets she took were a cause of her pulmonary emboli; and

(c) even if the appellant had been given a warning that the drug carried with it a small risk of suffering a thromboembolic event, the appellant would not have been dissuaded from taking the drug.

The principal judgment was given by Beach JA and McMillan AJA.

Reference was made at [10] to the seminal judgment of the High Court in Rogers v Whitaker (1992) 175 CLR 479 and to the passage from the plurality (at 483):

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgement’; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.

“The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill . . .”

Reference was also made to ss50 and 58 of the Wrongs Act 1958 (Vic) (Wrongs Act). The expert evidence was examined and Their Honours expressed at [27] the view that, “(n)otwithstanding the evidence that suggested it might not be usual practice for gynaecologists who prescribe tranexamic acid to give warnings to their patients of the risk of thromboembolism (the relevance of which evidence we do not pause here to debate), there seems to us to be reasonable grounds for contending that reasonable care required a warning in the terms of the MIMS annual to be provided by the respondent”. [Nettle JA, in a separate judgment, expressed the view that, as the appellant was a particularly anxious patient, she was more likely to have attached more significance to the risk had she been warned of it and therefore it was at least fairly arguable that she should have been warned (at [2]).]

Was the failure to warn causative of the appellant’s damages? Reference was made to ss51 and 52 of the Wrongs Act and to the decision of the High Court in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, a decision on the NSW provision equivalent to s51 of the Wrongs Act.

Beach JA and McMillan AJA examined the evidence at [34] which suggested that the drug was not causative of thrombosis; it might slightly increase the risk in some people; it was speculative as to whether the drug did cause thrombosis. Nettle JA agreed (at [4]).

Finally, on the question whether, had the appellant received an appropriate warning, the result might have been different, Beach JA and McMillan concluded at [41]:

“Evidence of what a person would have done if warned, which is given with the benefit of the hindsight of what actually occurred, has been described as ‘so hypothetical, self-serving and speculative as to deserve little (if any) weight, at least in most circumstances’. The dangers that may be associated with the acceptance of such evidence were, in our view, well-illustrated in the present case. The exaggerated nature of the appellant’s answers to the questions put to her on the issue of what she would have done had she received a warning well justified the trial judge’s rejection of this evidence. When one looks at the whole of the evidence, including the evidence of treatment to which the appellant was prepared to consent, like the trial judge, we are unpersuaded that an appropriate warning of the risk of pulmonary emboli would have made any material change to the events that occurred”. [Endnote omitted].

Nettle JA stated at [3]:

“. . . I agree with the judge’s conclusion that, anxious or not, the appellant failed to establish on the balance of probabilities that she would have declined the tranexamic acid if warned of the risk. It is one thing to accept, as I do, that the appellant presented as a particularly anxious patient and quite another thing to be persuaded that, because of a very slight possible risk of thromboembolism, she would have foregone the expected benefits of taking the tranexamic acid in the circumstances which she faced. Allowing that her anxiousness may have led to her attaching significance to the risk, it is inherently improbable that even the most anxious patient in her position, or thus she, would have declined the treatment offered”.

The appeal was dismissed.

The case illustrates the difficulties which confront a plaintiff seeking to establish a claim for professional negligence against a medical practitioner based on an alleged failure to warn.



PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University, ph 9600 1311, email Gregory.Reinhardt@monash.edu. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at www.austlii.edu.au.

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