Hammond v Heath

[2010] WASCA 6

Western Australia Court of Appeal

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Catchwords

1. Tort Law
2. › Negligence
3. › Medical negligence
4. › Duty to warn
5. › Whether duty to warn of risks of maintaining surgical appliance in place after surgery
6. › Whether duty arises absent contemplated further surgery or appreciable risk
7. › Rogers v Whitaker (1992) 175 CLR 479
1. Tort Law
2. › Negligence
3. › Medical negligence
4. › Standard of care
5. › Clinical judgment during surgery
6. › Whether decision to remove or retain surgical mesh during surgery is matter of clinical judgment for surgeon
7. › Whether duty to inform patient of intra-operative contingencies
1. Evidence
2. › Business records
3. › Admissibility under s 79C Evidence Act 1996 (WA)
4. › Medicare claims history statement
5. › Whether evidence linking medical services to alleged negligence required to establish relevance
6. › Evidence Act 1996 (WA), s 79B, s 79C(2a), s 79C(3)(a)
1. Practice and Procedure
2. › Trial procedure
3. › Cross-examination
4. › Failure to put case to witness
5. › Whether failure to challenge evidence in cross-examination precludes reliance on contrary propositions on appeal

Quick Take

The duty to warn recognised in Rogers v Whitaker is a duty to warn of risks inherent in a proposed surgical procedure to enable informed consent; it does not extend to a duty to delegate to the patient responsibility for deciding the course to be followed when contingencies arise during surgery. A duty to warn of risks of maintaining a surgical appliance in place requires evidence of appreciable adverse risk, and the failure of expert witnesses to assert such a warning obligation or to give evidence of the degree of risk prevents the court from making its own evaluation of appropriate standards of care. Failure to put the relevant propositions to the treating surgeon in cross-examination precludes reliance on those propositions on appeal.