More on the clinician’s duty to warn a patient of risks

A recent case on consent and the impact of Montgomery is Duce v Worcestershire Acute Hospital NHS Trust [2018] EWCA Civ 1307.

In 2008, the appellant underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy after suffering from heavy and painful periods. Following the surgery, she suffered neuropathic post-operative pain and claimed that the trust had negligently failed to warn her of the risk of developing chronic post-surgical pain (CPSP). The trial judge’s finding that the trust had not been negligent was upheld by the Court of Appeal.

The case illustrates 2 points arising out of the case of Montgomery.  Firstly, as Medio-Legal Minder has previously pointed out, the effect of the decision in Montgomery is retrospective so that a claim can be brought for a failure to obtain informed consent many years ago.

Secondly, and more significantly, the claimant has to prove that the clinician was or should have been aware of the risks which it is now said the patient should have been warned about.  That requires expert evidence to determine.  Medical knowledge changes, and in Duce it was common ground between the experts that CPSP was not common knowledge among gynaecologists at that time, and that “there was no clear evidence of that specific risk” at that time. Therefore in 2008 there was insufficient understanding among gynaecologists of the existence of a risk of “chronic pain, or of neuropathic (or nerve) pain, whether that was long term or short term” to justify the imposition of a duty to warn of such a risk.

Not surprisingly, a clinician is not required to warn of a risk of which he cannot reasonably be taken to be aware at that time.

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