Failure to advise patient of treatment options results in $215,000 damages award 

Doctors must advise patients of available treatment options and the risks and benefits of each, so that patients can make an informed decision about the most appropriate option for their circumstances.  

Informed consent – duty of disclosure 

Mr G was a long-distance bus driver. He ruptured his Achilles tendon and sought treatment at his local district hospital. His leg was placed in a half-cast, and he was referred to a major urban public hospital. 

His injury was conservatively managed at all stages. None of the doctors he saw discussed the possibility of surgical repair or the relative risks and benefits of surgical versus non-surgical treatment. His occupation was documented in his patient history. 

His leg healed but with significant lengthening of the tendon, which reduced his capacity for employment as a long-distance driver. He claimed the public hospital had breached its duty of care. 

Mr G argued the doctors had breached their duty to inform him about the available treatment options and the material risks and benefits of each. Specifically, they had failed to discuss the risks of tendon lengthening and that the risk of the tendon lengthening was significantly greater for non-surgical treatment than for surgical treatment (less than 1% for surgical treatment and about 5% for non-surgical treatment). Breaching this duty had deprived him of the opportunity to make an informed decision about treatment. 

Mr G argued, and the court accepted, that tendon lengthening was a material risk given his occupation. He claimed that if he had been advised of the options and respective risks and benefits, he would have chosen surgery. 

Negligence issues 

Mr G did not claim that conservative treatment was negligent, or that surgical treatment was the only acceptable option.  

The court accepted the hospital’s argument that non-surgical treatment was an acceptable form of treatment and, based on the literature, was likely to offer a similar outcome to non-surgical treatment. However, this was a separate issue to its duty to warn. 

 What if you prefer one treatment option over another?  

This case is not about whether non-surgical treatment was inherently inappropriate: the three medical experts all agreed that in general, non-surgical treatment was an appropriate response to a ruptured Achilles tendon.  Instead, the case is about what information that needs to be provided to a patient in their particular situation.   

This case highlights that you should not take a one-size fits all approach to management options. Where there is a range of acceptable options or alternatives, and you have a preference for one, then the patient should be given that information and the reasons why you prefer one approach over the other.

Each patient is different, and their particular circumstances may mean that they would be willing to face the risks of a conservative approach versus a surgical approach and vice versa. The only way to assess this is to have a conversation with the patient about what is important to them and what outcomes they are prepared to live with. 

The court accepted Mr G’s evidence that he would have chosen surgery had this been offered. 

It also found that the hospital had been aware of Mr G’s occupation. However, it also noted that the risk of tendon lengthening could apply to a broad class of people. In this case, it was not necessary for the hospital to have a detailed understanding of Mr G’s personal circumstances, other than that his occupation involved long distance bus driving. 

Patients have the right to choose whether to undergo a particular treatment. They need to be given enough information to be able to make that choice. 

Obtaining effective informed consent for treatment includes discussing the proposed treatment, any alternatives and their respective risks, expected outcomes and potential adverse effects. 

The discussion of risks should cover both general risks of treatment, as well as any risks that are likely to be particularly significant to the patient. 

Doctors are in the best position to evaluate medical issues. However medical issues may not be the only factors patients need to consider when deciding on treatment. The patient will be in the best position to assess other relevant factors, for example their ability to manage the treatment and recovery process, the impact of treatment on their lifestyle and responsibilities, and their own strengths and weaknesses.  

If you prefer one out of a number of acceptable options, explain the options and your reasoning for preferring one over the others.  

Do not omit information about a clinically acceptable alternative because you would not choose it or do not consider it in the patient’s best interests. That is the patient’s decision to make, having regard to their particular circumstances. 

Avant factsheet - Consent: the essentials 

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