What is a 'failure to advise' in medical negligence cases?

When a doctor recommends a medical procedure, he or she has a duty to inform their patient of all the risks and benefits involved. In some cases, the doctor must also discuss alternative treatments and surgeries.

A doctor who fails to give the appropriate advice may be breaching his duty of care to his patients, laying the foundation for medical negligence claims. The test is whether the doctor's conduct fell below the standard expected of a competent medical professional.

What advice does the doctor have to give?

The doctor has to tell their patient about all the major and usual risks associated with the medical procedure. This might include:

  • The common risks and side effects
  • Serious risks, even if there is only a slim chance of those risks occurring
  • Risks that a patient specifically asks about
  • Any alternative treatment, procedure or surgery.

The doctor is required to give this information so that his patient can make an informed decision about whether to go ahead with the procedure. This is part of the national health mandate to give patients more control over their medical care.

The duty to advise applies to all healthcare professionals

The duty to advise is not limited to doctors. Nurses, midwives, physiotherapists, dentists, dietitians and other healthcare professionals all must advise their patients of the potential risks associated with a healthcare treatment.

Is the doctor's conduct negligent?

A healthcare professional who goes ahead with a procedure without advising of the risks is violating the medical code of ethics. In some circumstances, they may also be negligent.

The test is whether the medical professional acted in a similar way to other medical professionals doctors in the same field. If it is common practice to advise about a risk but this doctor did not, then he or she typically will be said to have been negligent. Similarly, if other doctors do not routinely warn about a minor risk, then the doctor probably will not have breached his duty to advise if he fails to mention the risk to his patient.

If the patient had known of the risk, would they have refused consent?

It is not enough that the doctor failed to warn about a particular risk. The claimant must also show that:

  • Had they known of the risks, they would not have consented to the treatment; and
  • The treatment caused the claimant's illness or injury.

The leading case is Chester v Afshar (2004), which involved a patient who consented to undergo lumbar surgery. The surgery carried a 1 to 2 percent risk of worsening, rather than improving, the patient's condition. The defendant, consultant nEurosurgeon Mr Afshar, was under a duty to warn Ms Chester of this risk although he failed to do so.

The claimant argued that if she had been advised of the risk she would have taken the time to consider other treatment options, and would not have had the operation on the day it was performed. She did not say she that she would never have had the operation.

The Court found in Ms Chester's favour. The fact that she might not have consented had she known of all the risks was enough to make a successful claim.

"Failure to advise" claims

If you are considering making a surgical negligence claim, a negligence claim against the NHS, or a clinical negligence claim generally, call Quittance on 0800 612 7456 to discuss your options.

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