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The use of the tort of battery in medical cases instead of negligence, focusing on the concept of informed consent. how the burden of proof shifts to the defendant in battery cases and how attempts have been made to apply this doctrine in Australia. It also touches upon the relationship between fraud, consent, and causation in medical negligence cases.
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SOME RECENT CASES ON INFORMED CONSENT
In some common law jurisdictions there has developed a rule that where a patient agrees to medical, surgical or dental procedures but without having first been informed, warned or advised about the procedure to be undertaken, the patient's apparent consent is ineffective. This leaves the medical or dental practitioner involved open at the suit of the patient to an action for battery, which has several procedural advantages for a plaintiff when compared with an action for negligence. As will be seen both actions can be available on the same facts.
The need for a patient to be apprised of certain information about the procedure before an apparent consent can be effective has been called the doctrine of "informed consent". Does it represent the law in Australia today? There have been three relatively recent cases in the courts which have examined this question, two in the Supreme Court of South Australia and one in the Supreme Court of New South Wales.
One striking thing about medical litigation is how rarely a plaintiff succeeds. To win a negligence action the plaintiff must establish all of the elements of the case, most notably, a breach of duty, and the usual yardstick by which the standard of care is gauged to ascertain a breach is the accepted standard of medical practice.' This is a daunting task and no wonder plaintiffs have sought to take refuge in torts other than negligence to see if they can ease the heavy burden of establishing the appropriate standard of care and proving the breach of it. Res ipsa loquitur may be called in aid in some cases, but apparently not when there is direct evidence of how the allegedly wrongful act o c c ~ r r e d. ~
As virtually all medical treatments, examinations and procedures would be assaults but for the consent of the patient, it is not surprising that enterprising lawyers have seen the tort of battery as ripe for application to what American lawyers would call "malpractice" litigation. If a case can be made out in battery, just about all a plaintiff will have to prove is that there was an intentional touching by the defendant of the plaintiffs body. But the best from the plaintiffs point of view is yet to
in trespass to the person. As such it will have to be proved affirmatively by the defendant. Thus, where a plaintiff can bring a case in battery it will almost inevitably transfer a large part of the onus of the case onto the defendant, at the same time dispensing with the need to go into evidence of accepted standards of medical practice with the associated practical difficulties of obtaining witnesses. It will also avail a plaintiff of the
possibility of aggravated and other damages transcending the purely compensatory which would not be available in an action based on negligence.
How then does one set about introducing the tort of battery into medical cases? The answer is by the American doctrine of "informed consent". This doctrine postulates that if a patient is not apprised of the risks, alternatives and consequences of a medical procedure, particularly surgery, any "consent" given to it is in form only and ineffective in substance. Thus, the doctor will be open to suit in battery wherein the plaintiff can claim that bodily integrity has been invaded intentionally by the doctor who will be likely to lose the action unless it can be established that before the procedure in question an effective consent was obtained. Almost always negligence will be pleaded as an additional count, specifically a breach of duty by the doctor in failing to obtain an effective consent or failing to warn, advise or inform the patient adequately before the procedure was undertaken.
This kind of legal strategy, focusing as it does on trying to make battery the first string in the legal bow, is well known in A m e r i ~ a. ~
The negligence aspect holds that the doctor has a duty founded on the tort of negligence, to warn, advise or inform the patient about what is proposed. As a consequence, apart from the result of failure to inform as an issue in trespass, the same failure to inform might also be a breach of duty, opening the way for a negligence action. The differences in the consequences and requirements of the two actions will be referred to later. That there are two separate causes of action both labelled "informed consent" is not always obvious from the American cases and the literature. Perhaps "informed consent" should be applied exclusively to the battery issue and a term such as "duty to warn and advise" used for the negligence aspect.
There have been at least three important medical negligence cases in Australia in recent years where attempts have been made to sow the seeds of an indigenous doctrine of informed consent, (^) or perhaps more correctly, to transplant the American version. They have met with mixed success.
This mammoth episode of medical litigation ran for 74 sitting days in the Supreme Court of New South Wales before Fisher J (as he then was) and a jury of twelve. It attracted a large newspaper coverage at the time.' As the case is unreported the facts have to be gleaned from his Honour's summing up to the jury which runs to 190 pages of transcript.
Hart, a gymnasium proprietor, was forty five years old at the time of the trial. He underwent cosmetic plastic surgery in 1972 but was not
4 This appears to be the combined effect of the decisions of the High Court in Wren v Fairfax [I9661 117 CLR 118 and the House of Lords in Rookes v Barnard [I9641 AC
5 Eg Canterbury v Spence 464 F 2d 772 (1972) building as it does on Nathanson v Kline 350 P 2d 1093 (1960) and Salgo v Leland Stanford Univ 317 P 2d 170 (1957). 6 Unreported jury trial before Fisher J Supreme Court of NSW NO 12781 of 1979. Judgment delivered 11 July 1980. 7 Eg National Times 20 July and 27 July 1980.
8 Unreported interlocutory judgment delivered 23 June 1980 p2. 9 Contra - see Latter v BraddeN (1881) 50 LJQB 448. 10 Unreported interlocutory judgment delivered 26 June 1980 p7.
whether there is a breach of duty to take reasonable care by
upon Dr Herron to warn or inform his patients of risks to which they might have been exposed by treatment?" l 1
Honour suggested, raised two clear issues. First, whether not warning or informing rendered the defendant doctor guilty of a breach of duty in falling below the standard recognised as proper in his profession or specialty. Secondly, the causation question of whether the plaintiff could show that he would have refused the treatment if apprised of the risks. After reviewing the evidence his Honour held that there had been no evidence adduced by Hart to be put to the jury as to whether there was a standard of practice, and if there was whether the conduct of the defendant fell short of it. In the light of the evidence before him his Honour found there was no evidence fit for the jury to consider on the causation question either. In a parting shot his Honour similarly declined to follow American and Canadian cases whereby a failure to obtain any or an adequate consent, as a matter of law, grounded an action in negligence. A breach of duty, in his Honour's view, was always a question of fact for the jury. l 3
The outcome was then that the jury never deliberated upon whether there had been a breach of duty related to failure to warn or advise. Fisher J was of the opinion that in an appropriate case a tribunal of fact could find negligence on such a basis. But to do so there would have to be evidence of a relevant standard of behaviour in the medical profession and evidence that the actions of the defendant were in breach of that standard.14 In the instant case there was no suitable evidence before the jury from which they could assess those questions. Had the course of the cases for plaintiff and defendant been known in advance doubtless that kind of evidence would have been led by the parties. It is interesting to note that although as a result of the interlocutory judgments both the negligence and trespass manifestations of the "informed consent" doctrine were withheld from the jury, the jury by majority found in favour of the plaintiff on the issues of negligence, assault and false imprisonment. The verdict was for a total of $60, including aggravated damages for assault and false imprisonment of $24,000. Costs would no doubt have amounted to several times the verdict.
of neck and back pain associated with enlarged and painful breasts. She had undergone at least two previous gynaecological operations.
11 Supra n 10 at 15. 12 Supra n 1. 13 Supra n 11 at 18. 14 This is subject to the "reserve power" of the courts to find that a prevailing and accepted standard is itself negligent, referred to infra n 46. 15 D v S (1981) 93 LSJS 405. The names of the plaintiff and defendant were ordered not to be disclosed pursuant to s69 Evidence Act 1929 (SA).
moreover in all the circumstances her consent was not a true consent. It was not an informed consent".
Matheson J's finding for the plaintiff on the trespass issue is interesting in the light of the fact that a recently decided English case,
him in his judgment.
appeared to decisively scotch the informed consent question as an issue in trespass. Its facts were that a woman in severe pain underwent a procedure called intrathecal block. The block consisted of phenol being injected close to a nerve for the purpose of destroying the nerve's pain conducting ability.24 This was only partly effective but left her with other disabilities. Miss Chatterton sued in both trespass and negligence but failed on both counts. When discussing the trespass aspect his Honour specifically disapproved of the doctrine of "informed consent":
"Once a patient is informed in broad terms of the nature of the procedure which is intended and gives her consent, that consent is real and the cause of action on which to base a claim for failure
my judgment it would be very much against the interests of justice if actions which are really based on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass." Matheson J specifically cited these passages with approval in his judgment26 and yet went on to hold that an action in trespass had been established. In a passage which may be interpreted as distinguishing
appeared to take the view that the requirements of consent were different for therapeutic procedures as compared with the more or less cosmetic ones. With respect it is difficult to see that this can be correct. It is clear that a therapeutic operation particularly if urgent or lifesaving may invoke the defence of necessity where the patient's consent cannot be
No doubt on the basis of the now well established medical negligence
is possible that personal factors relating to the plaintiff in the light of all of the surrounding circumstances can be germane to deciding whether the doctor is guilty of a breach of duty in negligence. This would apply as much to provision of information, or lack of it, as to any other matter
22 Supra n 15 at 419. 23 Chatterton v Gerson [I9811 1 All ER 257.^ A^ discussion^ of^ this case appears^ in the article Deutsch, "Medical Negligence Reviewed" (1983) 57 ALJ 674. 24 Interestingly it was phenol which caused two patients to be accidentally paralysed in Roe v Minister for Health [I9541 2 Q B 68. 25 Supra n 23 at 265. 26 Supra n 15 at 418-419. 27 Ibid 419. 28 Supra n 1. 29 Smith v Auckland Hospital Board [I9651 NZLR 191 (NZ Court of Appeal). This case is also an interesting example of a misapplication of the Hedley Byrne principle.
where professional skill and competence are called for. It may be that in dealing with the negligence and trespass aspects in quick succession or simultaneously his Honour has not separated the issues relevant to negligence on the one hand in his own mind from those applicable to trespass on the other. In the final result it is not easy to understand how it can be said that the plaintiff did not understand that she was to have an operation on her breasts and that she had not consented to that operation. That she did not fully understand the implications of it is another question. But on the basis of Chatterton's case which his Honour accepted as correct an inadequate briefing would not be sufficient to destroy the effectiveness of the apparent consent given by the plaintiff.
that the plaintiff made known to her doctor her fears and anxieties about the operation and specifically canvassed with him the question of the final cosmetic effect, particularly with respect to scarring. She received reassuring answers from him and he made statements about these matters which turned out to be factually incorrect,30 although it should be stated here again that his Honour made no finding of fraud. It is submitted that there was material before his Honour which may well have justified a finding that the defendant knowingly or recklessly misled the plaintiff into consenting to the surgery. His Honour twice mentioned that the plaintiff was led to believe that the operation was a simple and uncomplicated one3' and that she believed that a plastic surgeon would at least be p r e ~ e n t. 3 ~ Thus the lack of a finding of fraudulent withholding of information or
the two other Australian cases, not to mention P a p a d i m i t r ~ p o u l o s. ~ ~
One is left with the pivotal statement of his Honour already quoted, "I
consent. It was not an informed consent".34 If by this it is meant that
must be seen as contrary to the orthodox understanding of consent and Chatterton's case in particular because an uninformed consent is still an effective consent, though a failure to discuss risks and alternatives may well be a breach of duty in negligence. On the other hand the statement might mean that the consent was both uninformed and for some other reason ineffective, such as the procedure being beyond the scope of the consent given or invalidated because of duress. Alternatively, it might be invalid because of an implicit finding not stated in so many words, that there were serious misapprehensions in the plaintiffs mind planted or encouraged by the defendant that went to the essence of the proposed operation rather than to incidental qualities of it. In such a case it may
30 They were called "false representations" in the pleadings: supra n 15 at 408. 31 Supra n 15 at 410, 411. 32 Supra n 15 at 410. Whether the plastic surgeon was said to be going to perform the operation is not made clear. 33 F v R (1983) 106 LSJS 136; (1983) 33 SASR 189 Full Court of Supreme Court of South Australia, on appeal from Mohr J (1982) 100 LSJS 51; (1982) 29 SASR 327 sub nom P v R; Papadimitropoulos, supra n 21. 34 Supra n 15 at 419.
negligence. The intentional torts were not pleaded.42 Shortly stated the facts were that the plaintiff attended the defendant who was a gynaecological surgeon. She was undergoing her third pregnancy and sought advice on sterilisation as a method of preventing her having further pregnancies. The defendant agreed to perform the sterilisation at the same time as the plaintiff was confined for the delivery of the child by caesarian section. The operation was performed, but about two years later the plaintiff again found herself pregnant. It seems that the sterilisation operation of tying the fallopian tubes had spontaneously reversed by a process known as recanalisation. At the trial before Mohr J sitting without a jury, the plaintiffs case had failed on an allegation of battery for lack of informed consent but she had succeeded in negligence based on a failure to warn or advise. The warning which his Honour found should have been given was an assessment of the possibility or likelihood of spontaneous reversal. The plaintiff gave evidence, as did her husband, that if enlightened as to the possibility of recanalisation they would have chosen a more certain form of sterilisation. The Full Court accepted that the defendant had made a statement to the plaintiff at the time of the consultation to the effect that "I will cut and tie your tubes. I consider it the best method of preventing further pregnan~ies".~3Both Mohr J and the Full Court limited their finding of fact about preoperative conversations to this statement and to the husband having raised the possibility of his also having a vasectomy at a joint consultation with the defendant. He was told that this would be unnecessary and he pursued the matter no further.
There were thus two questions for the Full Court. First, whether the failure of the defendant to warn of the chances of spontaneous reversal amounted to a breach of duty. Second, if so, would the damage of a further pregnancy have occurred if a proper warning had been given.
The three judges constituting the Full Court (King CJ, Legoe and Bolen JJ) paid significant attention to the nature of the doctor's duty to a patient including how the content and limits of the doctor's duty is ascertained. As King CJ put it:
"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice
was that of an ordinarily careful and competent specialist in gynaecology. The application of these principles to the disclosure of information by a medical practitioner to his patient presents special difficulties". 44 There was evidence before the court that the worldwide failure rate for tuba1 ligation operations was between 1 in 100 and 1 in 200. The defendant surgeon's evidence was that she had carried out 600 sterilisations without a single f a i l ~ r e. ~ 5There was also medical evidence
42 The trespass issue was pleaded at the trial but the plaintiff lost on this point. It was not reargued in the appeal. 43 Supra n 33 at 137 per King CJ. 44 Supra n 33 at 137. 45 The term failure is frequently used by their Honours. However it might not be strictly correct to say that the subsequent spontaneous reversal of an efficiently done operation meant that the procedure as performed was a "failure".
that tuba1 ligation was the appropriate form of sterilisation for the plaintiff and that more radical methods such as hysterectomy, although not subject to spontaneous reversal, were not indicated. In the light of this evidence all members of the court seem to have acknowledged that the ultimate question was really whether it was a breach of duty for the surgeon to fail to volunteer information as to the possibility of recanalisation which she knew of and believed to be small. Unanimously they held it was not. On three independent, though at many points similar, lines of argument all three judges disagreed with the trial judge and allowed the appeal. There was general agreement among their Honours that adherence to the usual practices of the medical profession is strong evidence negating negligence but is not conclusive on the point.
for the plaintiff patient on "informed consent", both in battery and in negligence. But as all of these cases turn on the legal effect of discussions between doctors and patients before surgical operations or other treatment regimes can they not be reconciled on a closer analysis?
This issue really comes down to when an apparent consent is effective consent. As Fleming states a misapprehension "[Rlelating to a wholly collateral matter which operates merely as an inducement, does not destroy the reality of c0nsent".4~ The difficulty is discerning whether the lack of information, advice or warning, or in some cases, misinformation, is "wholly collateral".
abstract terms but is content to be able to know it when he sees it. He was confident that a failure to supply information about a particular treatment did not destroy the reality of consent when the patient assented
was not reargued on appeal.
that, to^ the^ patient^ at^ least,^ the matters^ discussed^ pre-operatively^ were not, in Fleming's words, "wholly collateral" with the result that there was no true consent. This view might be strengthened by the clear evidence before the court that the end result cosmetically speaking was of prime importance to the patient. The two difficulties with this are, first, the problem discussed supra, namely, gleaning from the report his Honour's
46 Eg supra n 33. Eg King CJ at 141, and Bolen J at 148. This is a useful corrective to Hart, Chatterton and D v S where all of the trial judges endorse the pure medical standard without specific reservation. The approach of the Full Court in F v R is consistent with the High Court in Mercer v Commissioner for Road Transport etc (1936) 56 CLR 550 and Reynolds JA in Albrighton v Royal Prince Alfred Hospital [I9801 2 NSWLR 542, 562f. 47 Fleming, The Law of Torts (6th edn 1983) 74.
to suggest otherwise and on analysis it can either be explained as decided on other grounds or be seen as inconsistent with Australian law on this point. Second, the reluctance to accept informed consent has not been sheeted home to any previously decided case but depends on a treatment of the tort of battery from first principles. Third, the courts have been much more willing to entertain the notion that failure to warn, advise or inform may constitute a breach of duty for the purposes of the tort of negligence. Where a breach of duty on these grounds is alleged it seems that it will be seen as one aspect of a doctor's overall responsibility to protect a patient from foreseeable harm. Moreover, whether or not a breach of duty is established in any individual case will be decided in the light of all of the surrounding circumstances of the case. T o put it another way, there is no independent cause of action of failure to inform. It is but one aspect of the general duty of care. Finally, one of the important circumstances to be considered will be the practice of the ordinarily skilful member of the profession or branch of it from which a defendant holds themself out. However in appropriate cases there is a "reserve power" in the courts to find that any practice or standard of conduct in the profession is itself negligent, though semble, this power will be used only infrequently and in extreme cases. So while there probably is no doctrine of informed consent as grounding an action in battery, failure to inform patients adequately can lead to an action in negligence at the suit of patients against their medical advisors. But in a negligence action the patient will bear the burden of proof of all elements of the case including establishing that if fully informed they would not have proceeded with the operation.