whether the defendant breached her duty of care to the plaintiff by failing to correctly diagnose the plaintiff’s medical condition
Quick Take
1Under s 42 of the Civil Law (Wrongs) Act 2002 (ACT), the obligations of medical professionals are not circumscribed by the limits of information volunteered by patients; a surgeon must make all necessary enquiries to ensure a full comprehension of the patient's condition, history and relevant background before advising on treatment options.
2Following Fuller v ACT [2024] ACTCA 19 and Rogers v Whitaker, practice accepted to be competent professional practice is not determinative of whether there has been a breach of the standard of care; the court must independently weigh the factors in s 43 of the Civil Law (Wrongs) Act 2002 (ACT) including the probability and seriousness of harm, the burden of precautions, and all circumstances of the case.
3A surgeon who fails to present a patient with the full suite of available treatment options — including less radical alternatives such as reversal of prior surgery before proceeding to more complex procedures — may breach the duty of care even where the patient consented to the procedure actually performed.
