The High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479 saw the judgment given in the previous case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 being set aside and a ruling different from the one given in 1957 was give. It was decided in Rogers v Whitaker that the obligation of care of the medical practitioner relating to the information and advice which has to be provided to the patient, with regards to the treatment which has been proposed, was majorly related to providing of such information, which a prudent individual in the position of the patient would need (Stewart Kerridge, and Parker, 2007). And while giving this particular ruling, the practitioner-oriented and the paternalistic approach of the English Courts, as given in the earlier case, was rejected and opened the channels for persuasive director for reviewing the law in this area to the House of Lords (Forrester and Griffiths, 2014).
The following parts contain a research over the case of Rogers v Whitaker and present a conclusive summary of this case, by highlighting the judgment and the facts of this case. Along with this, the arguments made by the plaintiff have also been highlighted.
Maree Whitaker was the respondent in this case, i.e., the plaintiff of the case and she was nearly blind in one of her eyes, since past forty years, due to a severe injury which she got when she was merely nine years old. Even though she had this injury, Whitaker lived a normal life majorly (Kennedy, 2008). Whitaker consulted an ophthalmic surgeon, Christopher Rogers, who had given her the advice that the operation on her injured eye could significantly improve the appearance of it, and there was also a possibility of restoring the vision of that eye. The surgery was conducted with the requisite care and skill. However, after this surgery, the plaintiff developed a condition in her good eye, which is known as ‘sympathetic ophthalmia’. And subsequently, the vision in her good eye, i.e., her left eye was lost. And as the condition of her right eye did not improve, she was nearly blinded (Macdonald, 2017).
As a result of this, the defendant was sued by the plaintiff for the failure in undertaking the duty of care as he did not warn her about the risk of sympathetic ophthalmia and hence, had to be deemed as negligent. The plaintiff had not enquired about the possibility of the operation in the right eye having the ability of affecting the left eye specifically. Though, the plaintiff had asked constantly to the defendant regarding all the complications which could possibly result from the surgery. In the evidence that had been provided, the defendant had stated that sympathetic ophthalmia was not such an element which came to the mind of the defendant to mention to the plaintiff. Moreover, the evidence present clearly showed that the sympathetic ophthalmia’s risk merely 1 in 14,000 and even in such cases, the result was not the blindness of the eye that was affected (Health Law Central, 2017).
The defendant relied upon the principle given in the English case of Bolam v Friern Hospital Management Committee, i.e., the Bolan principle, which stated that the medical practitioner could not be held negligent when the practice accepted at the time was proper in view of his peer, even when a different practice had been adopted by the medical practitioner (Jade, 2017).
The first and foremost thing which the plaintiff would like to emphasize upon is that due to the negligent behavior of the defendant, the plaintiff has been nearly blinded and has lost visit in her perfect eye. The actions of the defendant were totally wrong, which ultimately led to a loss for the plaintiff, which was of substantial nature. It cannot be disputed here that due to the proximity between a doctor and his patient, the defendant owed a duty of care towards the plaintiff. Under the law, the medical practitioners are required to exercise prudent skills and care with regards to the treatment and advice given in their professional capacity (McLean, 2009). As per the case of Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871, this duty is the single most comprehensive duty which covers any and all ways, in which a doctor is required to or can be called upon for undertaking judgment and skill, which they have in their professional capacity. And as per Gover v. South Australia (1985) 39 SASR 543, the same extends to the treatment, examination and the diagnosis of the patients, on the basis of the particular case’s information. Hence, the very first requirement of establishing the presence of duty of care is established here (PACI, 2017).
The next step requires the plaintiff to show that the reasonable skill and care, which is standard in nature, which an ordinarily skilled individual professes and exercises, as per Bolam v. Friern Hospital Management Committee, by having special skills have been discharged or not. In this case, the skill of the defendant, by reasons of being an ophthalmic surgeon, related to the anterior and the corneal segment surgery. In this case, the defendant failed in observing the standard of skill and care which was required on his part. This is because the defendant failed in making the plaintiff aware about the possible risks arising out of the surgery of sympathetic ophthalmia, being the result of the surgical procedure which had to be undertaken. The statement of the defendant that proves that he forgot to inform the plaintiff about the surgery as it did not come to his mind. So, this shows that he failed to fulfill his obligation of care (Australasian Legal Information Institute, 2017).
The content and the scope of duty of care owed by the defendant is the major issue in this matter. The plaintiff would like to highlight that the Bolam principle should not be applied so as to hold the defendant liable. As per the Bolam principle, the medical practitioner is not negligent when he acts as per the standards and in a responsible manner, on the basis of medical opinion of responsible medical opinion. Hence, even this case imposes the duty of care over the medical judgment taken by a doctor. The plaintiff would request not to apply this principle when the same entails the courts to defer the medical experts in the medical negligence cases, even when the primary judge held the negligence on part of the medical practitioner. This is also because the Bolan principle is biased towards the medical practitioners in cases where such individual had not warned the plaintiff about the possible repercussions of the surgery (Staunton and Chiarella, 2016).
The plaintiff urges the court to go outside the exclusive reference to the Bolan case and instead consider the present state of competent and responsible professional opinion and the practice at the time the incident occurred (Forrester and Griffiths, 2011). Though, it is also significant that the advice given by a doctor to his patient, as per the requirement of the law, be evaluated, which allows the patient to make up their own mind with regards to all the required information and finally allows them to make the decision on whether to go forward with the treatment or to abandon it completely. This information was not provided her as the doctor did not consider sympathetic ophthalmia when he was discussing the treatment with the plaintiff. This resulted in the plaintiff not been adequately warned about the possible side effects of the surgery, which resulted in substantial losses for the plaintiff. Moreover, it is also crucial to note here, that as the same was not discussed, the results could not be known to the plaintiff, as the plaintiff does not have the expert knowledge which the doctor had, due to his skills and qualification (Jade, 2017).
The plaintiff would like to emphasize upon the fact that she had repeatedly questioned the defendant about different aspects of the surgery and about the possible outcomes. Even then the defendant chose not to disclose such substantial facts relating to the surgery. And this proves the breach of duty of care on part of the defendant. The plaintiff would like to make a reference to two cases in this regard, i.e., the case of Reibl v. Hughes ((19) (1980) 114 DLR (3d) 1) and that of Canterbury v. Spence ((18) (1972) 464 F 2d 772). In both these cases, it was held that the duty of warn is born from the right of the patient to know about the material risks, which allows the patient to decide whether or not they want to opt for the proposed medical treatment (Jade, 2017).
The plaintiff also requests the court to consider the case of F v. R. ((26) (1983) 33 SASR 189), where as per the decisions of the Full Court of the Supreme Court of South Australia, the Bolan principle was not applied even when the rat of failure of the sterilization process was less than one percent. This case highlighted how the breach of standard of reasonable care, results in an individual getting pregnant even when she had been sterilized, though, the same had clearly failed. Hence, the Bolan principle cannot be applied, as the question has to be decided upon by a competent court, instead of a member of a profession or that of a community (Freckelton and Petersen, 2006).
The nature of treatment, the health and temperament of the patient, the nature of matter requiring disclosures and the desire of the patient for the information decides the amount of disclosures which are to be made by a reasonable and responsible doctor. As per Reibl v. Hughes, if the medical practitioner is given the complete freedom in deciding the material-ness of risk, the entire question surrounding the scope of duty pertaining to disclosures and the resultant breach of duty would undermined and even suppressed. Hence, the plaintiff requests the court to not consider the Bolton case and instead, decide the matter on the basis of the negligence undertaken by the defendant by not disclosing the material facts, which led to the near blind condition of the plaintiff. This was a complete breach of standard of care, as a prudent doctor would have made the requisite disclosures, instead of forgetting about them (Australasian Legal Information Institute, 2017).
The court decided to reject the Bolam principle and they held that an individual, who has the special skills, was required to ensure that the standard of reasonable care and the skill as per the reasonable skilled person is exercised (Australian National University, 2017). Moreover, the court also held that there was a duty on part of the defendant to warn the patient about the material risks, irrespective of the practices which were accepted widely as that is what a prudent doctor would have done. Moreover, when the patient had expressed her concern about the risks, it was crucial that the patient was made aware of the material risks associated with the surgery (Swarb, 2015).
The decision taken by the Supreme Court of New South Wales was affirmed by the High Court of Australia, with regards to the duty of the doctor to warn the patient regarding any material risk, which involves a particular treatment. This risk has to be adjudged by the standards of a reasonable person in similar situation and hence, the doctors have to be cognizant in expressing their concerns about the risks. Hence, the doctor was held liable in this case, for negligence, owing to failure in adopting the standard of care (Townsend and Luck, 2012). And so, the plaintiff was awarded damages amounting to $808,564.38 (Gerard Malouf & Partners, 2016).
Conclusion
This is a landmark case with regards to the duty of care owed by the professionals, while undertaking their professional skills. Due to this case, the professionals are required to discharge their skills in the best of the manner, as a prudent person would do. More specifically, the medical professionals are required to undertake special care in making the patient aware about the material risks of a procedure, more particularly in such cases, where the patient had attempted to gain an understanding on the risks pertaining to a particular treatment. This case is also crucial as it sets aside the Bolam principle and does not give the medical professionals the autonomy of deciding upon the materiality of risks.
References
Australasian Legal Information Institute. (2017) Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1992/58.html?query= [Accessed on: 23/05/17]
Australian National University. (2017) Setting the Standards for Medical Negligence: The Bolam test post Rogers v Whitaker. [Online] Australian National University. Available from: https://law.anu.edu.au/sites/all/files/users/u4810180/bolam.pdf [Accessed on: 23/05/17]
Forrester, K., and Griffiths, D. (2011) Essentials of Law for Medical Practitioners. New South Wales: Elsevier Health Sciences.
Forrester, K., and Griffiths, D. (2014) Essentials of Law for Health Professionals. 4th ed. New South Wales: Elsevier Health Sciences.
Freckelton, I.R., and Petersen, K.A. (2006) Disputes and Dilemmas in Health Law. New South Wales: The Federation Press.
Gerard Malouf & Partners. (2016) High Court Determines Failure to Warn Principle – Rogers v Whitaker [1992] HCA 58. [Online] Gerard Malouf & Partners. Available from: https://www.gerardmaloufpartners.com.au/Publication-1991-High-Court-Determines-Failure-to-Warn-Principle—Rogers-v-Whitaker–5b1992-5d-HCA-58.aspx [Accessed on: 23/05/17]
Health Law Central. (2017) Rogers v Whitaker (1992). [Online] Health Law Central. Available from: https://www.healthlawcentral.com/rogers-v-whitaker/ [Accessed on: 23/05/17]
Jade. (2017) Rogers v. Whitaker. [Online] Jade. Available from: https://jade.io/article/67721 [Accessed on: 23/05/17]
Kennedy, R. (2008) Allied Health Professionals and the Law. New South Wales: The Federation Press.
Macdonald, A. (2017) Opinion. [Online] Adelaide Centre for Bioethics and Culture. Available from: https://www.bioethics.org.au/Resources/Online%20Articles/Opinion%20Pieces/0503%20Rogers%20v%20Whitaker%20duty%20of%20disclosure.pdf [Accessed on: 23/05/17]
McLean, S.A.M. (2009) Autonomy, Consent and the Law. Oxon: Routledge.
PACI. (2017) Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992). [Online] PACI. Available from: https://www.paci.com.au/downloads_public/court/12_Rogers_v_Whitaker.pdf [Accessed on: 23/05/17]
Staunton, P.J., and Chiarella, M. (2016) Law for Nurses and Midwives. New South Wales: Elsevier Health Sciences.
Stewart, C., Kerridge, I.H., and Parker, M. (2007) The Australian Medico-legal Handbook. New South Wales: Elsevier Health Sciences.
Swarb. (2015) Rogers v Whitaker; 19 Nov 1992. [Online] Swarb. Available from: https://swarb.co.uk/rogers-v-whitaker-19-nov-1992-2/ [Accessed on: 23/05/17]
Townsend, R., and Luck, M. (2012) Applied Paramedic Law and Ethics: Australia and New Zealand. New South Wales: Elsevier Health Sciences.
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