Causation, Coincidence, and Medical Non-Disclosure of Risk
Melbourne Law School
185 Pelham St, Carlton
If a patient suffers physical harm during medical treatment when a risk materialises which the doctor failed to warn the patient about, there are two key issues when a negligence claim is brought by the patient. First it must be shown that the doctor was negligent in failing to warn the patient about the particular risk. Secondly it must normally be shown that this failure to warn was a cause of the damage suffered, although courts also allow claims to succeed when a patient may still have undergone treatment even if adequately warned. The recent decision in Montgomery v Lanarkshire HA changes the test for the first of these steps, by moving away from asking what a reasonable doctor would warn about and asking instead what a reasonable patient, or indeed the actual patient, would want to know. This paper considers how that change ought to impact on the second step, causation. The primary argument against causation in such cases is that if the patient would still have undergone the procedure at a later date if properly warned of the risks, then the failure to warn did not expose the patient to a risk that she was unwilling to accept. That harm occurred is viewed merely as a coincidence, yet the definition of ‘coincidence’ is under-analysed in the case law. This paper first considers the notion of ‘coincidence’ through an analysis of Chester v Afshar, Chappel v Hart and Wallace v Kam in order to fully understand the issues at stake. The second section of this paper evaluates potential developments to the law in light of the more claimant-friendly approach to risk disclosure enshrined in Montgomery.
Associate Professor Gemma Turton, Lecturer
Associate Professor Gemma Turton
University of Leicester
Gemma Turton is an Associate Professor at Leicester Law School. Her research expertise is in causation in negligence, and her broader research and teaching interests are in the law of obligations. Her monograph, Evidential Uncertainty in Causation in Negligence, was published by Hart Publishing in early 2016. She is the Case Notes Review Editor for the Journal of Professional Negligence.