Patient awarded over $215k for doctors' failure to advise treatment options

30 October 2018 | Georgie Haysom, BSc LLB (Hons), LLM (Bioethics), GAICD, Head of Advocacy and Dr Susan Hertzberg, MBBS, MHealthlaw, MBioethics, FACEM, Senior Medical Advisor, Avant

The Supreme Court has dismissed an appeal against a decision that a hospital breached its duty of care owed to a patient, causing injury which affected his ability to work as a coach driver.

The recently reported case centred on the hospital’s failure to advise the patient of the two treatment options available and the advantages and disadvantages of the respective treatments. The case emphasises the importance of rigorous consent processes and a doctor’s duty to advise patients of their treatment options, particularly the material risks inherent in procedures and treatments to enable them to make an informed decision about their treatment.

Case facts

A male long-distance coach driver in his late-forties attended a district hospital after rupturing his Achilles tendon. The rupture was managed conservatively: his leg was placed in a half-cast and he was referred to a major hospital. Several different doctors working at the referral hospital examined his leg on several occasions and a new cast was put on. The doctors relied on their clinical examination and the patient’s history but did not perform an ultrasound or other radiology in assessing the condition of the patient’s tendon. The facts were only briefly outlined in the decision and further detail was not provided.

At no stage did any of the doctors discuss the possibility of surgical repair of the tendon with the patient. On the patient’s second hospital visit, a doctor recorded that his tendon was “in continuity.” About two weeks later, another doctor recorded that the patient was a coach driver with an Achilles tendon rupture who had not been offered surgery, but surgery was not suggested then and the non-surgical treatment continued.

The patient’s leg healed with some tendon lengthening which reduced his capacity to work as a coach driver.

The patient sued the state (which was legally responsible for the hospital and the doctors who worked there) for negligence. The patient argued the hospital should have advised him of the two treatment options – non-surgical and surgical treatment ­– and explained the advantages and disadvantages of both options. Particularly, the patient claimed that he should have been advised that non-surgical treatment carried an increased risk of the tendon healing in a lengthened position possibly resulting in weakness of the plantar flexion, which could affect his capacity to perform certain activities relevant to his occupation as a coach driver.

The court originally found the hospital breached its duty of care by failing to advise the patient of alternative surgical treatment and the advantages and disadvantages of non-surgical and surgical treatment. He was awarded $81,515 in compensation and his costs.

On appeal, the hospital unsuccessfully sought to overturn the findings of the original court based on the duty and standard of care owed and medical evidence. The Court of Appeal dismissed the appeal and instead awarded the coach driver a larger amount of compensation ($215,955) for his injury.

Duty to advise of the two treatment options

There was some discussion in the case about whether or not the doctors breached their duty of care in relying solely on clinical examination and medical history, instead of conducting further investigations, for example, use of ultrasound or radiology. Ultimately, this was found to be irrelevant to the main issue in the case, which was whether or not the hospital should have advised the patient about advantages and disadvantages of the two acceptable treatment options – surgical versus non-surgical.

The medical evidence from three experts was that while both non-surgical and surgical treatment were appropriate forms of treatment for a ruptured Achilles tendon, non-surgical treatment carried a greater risk of tendon lengthening.

Tendon lengthening was a particular problem for the coach driver because of his occupation, and the hospital had enough information from the history taken to be aware of this potential problem for him.

The Court of Appeal affirmed the findings in the courts below that the hospital breached its duty of care in failing to advise the patient about the availability of surgical and non-surgical treatment or about their respective advantages and disadvantages.

The Court of Appeal confirmed the following legal principles from earlier cases:

  • The law recognises the right of the patient to choose whether or not to undergo a proposed treatment, and there is a need for the patient to be adequately informed to be able to make that choice.1
  • Even if patients are not best placed objectively to decide on whether or not to undergo a particular treatment, they nevertheless have the right to be placed in a position which enables them to make an informed decision.2
  • This decision is based only in part of the medical issues on which plainly the medical practitioner has a significant advantage.2
  • Whether the patient has been given all the relevant information to choose is not a question the answer to which depends on medical standards or practices.3
  • An important aspect of the decision is the impact the particular surgery or treatment will have on the particular patient’s life.2
  • This requires an understanding of the patient’s lifestyle, what is important to him or her, the strengths and weaknesses of the patient in coping with particular kinds of adversity.2

The court found that because of the patient’s employment and the need to recover in the shortest timeframe possible, if he had been advised about surgical treatment versus non-surgical treatment, he would have chosen to have surgery which carried a lower risk of the injury he sustained.

Obtaining consent: risk discussions

This case highlights the importance for doctors to conduct rigorous consent processes with each patient. This discussion should include an explanation of the treatment options available and the risks, benefits, alternatives and complications that may occur with the procedure or treatment, to enable the patient to make an informed decision.

General and specific risks

Known risks should be discussed with the patient, including risks that are general in nature, quite common and have only a slight detrimental effect, as well as the risks that are rare but their outcome is severe. Risks specific to the procedure or treatment also need to be discussed.

Material risks

Doctors have an obligation to inform patients of the important or material risks inherent in a proposed procedure or treatment. The test for what is a material risk is patient-centred: it involves considering what is likely to be of significance to the patient in their particular circumstances. The emphasis is on the particular and the individual – what is material to one patient may not be to another.

The consent process is about engaging the patient in a discussion about their needs, priorities and expectations and coming together to a shared decision about their treatment. The patient’s perspective is important. The risks you need to discuss include those likely to be significant to the patient, which is why it is essential you ask what is important to them.

The discussion needs to:

  • Consider the treatment and options from the patient’s perspective.
  • Explore with the patient what is most important to them – for example, being pain free, able to walk unassisted or live independently or continue their current work.
  • Explore what outcomes they are prepared to live with.
  • Talk to the patient about how they would manage a common outcome – for example, would they be able to take time off work to recuperate if necessary?
  • Give the patient context – in this case, what does tendon lengthening actually mean for them?

Key lessons

  • Inform patients of all the treatment options available, including the risks, benefits, alternatives and complications of these treatments.
  • Explore with the patient what outcomes are important to them.
  • Keep accurate, contemporaneous medical records of the discussion and document patient consent and any written information you have handed out.

More information

Download our factsheet: Consent essentials and video: Gaining patient consent.

If you are subject to a complaint, visit our website or call our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.


1 Wallace v Kam (2013) HCA 19; 250 CLR 375

2 KL v Farnsworth (2002) NSWSC 382

Roger v Whitaker (1992) 175 CLR 479

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