Compensation for Failing to Warn about Medical Risks
When a patient is to undergo medical treatment or surgery, it is the duty of medical professionals to ensure that the patient is fully informed as to risks associated with the treatment and any alternative forms of treatment which might be available.
If medical professionals fail to carry out this duty and the patient suffers long-term effects as a result, the relevant professional may be considered to have acted negligently and it might be appropriate to make a claim for compensation.
However, where there is no resulting significant, negative impact on the patient or where there is no evidence to suggest that the patient would have made a different choice even knowing the risks and alternatives, a compensation claim is unlikely to be appropriate.
What does the patient need to know?
The patient does not necessarily need to know about every single possible risk. Some risks may be negligible or not relevant to the particular patient. However, the law states the following as to the relevant risks about which a patient should be informed:
"in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should be reasonably aware that the particular patient would be likely to attach significance to it."
The risks that might be significant to one person will not always be the same as those considered significant to another person. A patient's view about a course of treatment might, for example, be influenced by a range of factors such as their profession and their culture as well as their physical characteristics or other pre-existing medical conditions.
The law now takes the view that it is not up to the medical practitioner to determine what should be the patient's choice but to inform the patient clearly so that they can make a voluntary and informed decision.
The patient should, therefore, be informed at to alternative treatments or options. It is not up to the medical professional to make that choice for the patient, except in cases of medical emergency, but to inform the patient as to the options.
An example of failed consent - (Montgomery v Lanarkshire Health Board)
A pregnant woman with diabetes carrying a large baby was not informed that she had an increased risk of her baby experiencing shoulder dystocia during the birth and that the resulting delay in birth could cause the baby to suffer brain damage, as turned out to be the case. It was agreed by the court that, had she been informed of these risks, the woman would have chosen to give birth by caesarean section.
In this woman's particular situation, although the risk was small, the potential impact was huge and the relevance to that individual was considerable. Therefore, it as a risk of which she should have been, and would have wanted to have been, made aware.
Speak to a solicitor
Glynns Solicitors is a specialist medical negligence legal practice. Contact us to today if you or a loved one are suffering the long-term effects of medical treatment or surgery due to a failure to ensure that you were aware of associated risks and alternatives.
One of our team of experienced medical negligence solicitors will be happy to advise you as to the suitability of making a claim for compensation.
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