331/05

IpsofactoJ.com: International Cases [2007] Part 11 Case 9 [SCIre]


SUPREME COURT OF IRELAND

Coram

Paul Fitzpatrick

- vs -

Aida White

(as nominee of Royal Victoria Eye & Ear Hospital)

Kearns J

Macken J

Finnegan J

15 NOVEMBER 2007


Judgment

Justice Kearns

(with whom Macken & Finnegan JJ concurred)

  1. This case raises interesting issues about the requirement on medical practitioners to warn patients of the risks and dangers associated with medical procedures. In the instant case the plaintiff contended at trial that he had never been warned in any way about a particular risk inherent in a proposed operation to his left eye in March, 1994 which said risk unfortunately later eventuated. Although the trial judge found against the plaintiff, holding that a proper warning had been given, the plaintiff nonetheless contends that the warning in this case, which was given to him on the day of his operation, was ineffective because it had been given ‘at the last minute’ when the plaintiff had committed himself to the operation and was soon to be brought to theatre. He further contended at trial that had he been properly warned he would have declined the operation in question.

    Background

  2. The plaintiff is a professional musician from Dublin who was born on 29th November, 1967. From birth he had a convergent squint in his left eye which was turned in. After unsuccessful treatment at Sir Patrick Dun’s hospital involving the use of patches, he had an operation in 1974 when he was seven years old in the Royal Victoria Eye & Ear Hospital to correct the squint. He was in hospital for three days after that operation. Thereafter he was left with what was described as a small squint which was not a disabling problem for him. However, in November, 1993 he decided for cosmetic reasons to explore the possibility of correcting the squint. With that in mind he attended the Eye & Ear Hospital in November 1993 where he met, firstly, a Ms. Nano Fitzsimons, an orthoptist whose specialty was squints, and who fully tested and evaluated the state of the plaintiff’s vision. She found some slight limitation of movement of adduction of the left eye. Her function at that time was to make an assessment as to whether or not an adjustment to reduce the squint by means of an operation was appropriate. Ms Fitzsimons arranged for the plaintiff to meet Mr Paul Moriarty, ophthalmic surgeon, in December, 1993 for a follow-up consultation. Her report was available to Mr Moriarty at this point. A third consultation took place on 9th February, 1994, following which Mr. Moriarty apparently decided the plaintiff was suitable for surgery. The plaintiff then got a letter telling him to come in for his operation on 10th March, 1994.

  3. On the day he presented, the plaintiff, who was a public patient, learned that his operation would not be performed by Mr Moriarty but by Mr Martin Goggin, who was a registrar working with Mr Moriarty but who was amply qualified to carry out the proposed surgery. Mr Goggin had the notes of earlier examinations and also the orthoptic report of Ms. Fitzsimons. In the course of her report Ms Fitzsimons had raised various points for the surgeon’s consideration, including not only the possibility of surgery for the squint in the left eye, but also the possibility of a single right medial rectus recession in the ‘good’ eye. In highlighting different options, she was not of course telling the surgeon what should be done, and her evidence at trial was to the effect that any decision as to the course adopted together with the responsibility for warning the patient of any risks associated therewith, remained matters for the operating surgeon. The plaintiff met with Mr. Goggin approximately 30 minutes before he was due to undergo surgery. At that stage the plaintiff was in a gown and was sitting or lying on a bed in a ward of the hospital. He does not appear to have been sedated as part of his premed for the operation.

  4. At trial, the plaintiff gave evidence that Mr. Goggin spent about ten minutes with him, that he had a clipboard and was taking some notes. According to the plaintiff, he enquired of Mr. Goggin if there was a good chance that the eye would be straight following the operation. According to the plaintiff, Mr. Goggin replied “it won’t be 100 percent straight. There is a good chance there will be a good cosmetic improvement. The only thing is that when you go into your 40’s the muscles might start to drop back a little bit and you might want to get it corrected again”. On the plaintiff’s account, Mr. Goggin did not mention any complications, side-effects or adverse consequences that might ensue. The plaintiff acknowledged that he signed what was then a standard consent form to undergo the operation. This consent form did not specify any risks associated with the proposed procedure. In cross-examination the plaintiff stated that had he been told by Mr Goggin about the risk of muscle loss or slippage resulting in double vision he would have remembered it and “walked straight out of the hospital”. In other words, he would have foregone the operation.

  5. Mr. Goggin for his part gave evidence that on the date in question he conducted both a heart examination and various other examinations of the plaintiff to assess his fitness to go ahead with the procedure. He had available to him the orthoptic report prepared by Ms. Fitzsimons. He told the court that he could not specifically recall meeting the plaintiff on the date in question. However, he gave evidence of his general practice. He told the court that he would have advised the plaintiff of the details of the proposed procedure. In this case he would have told the plaintiff that he planned to move the muscle on the back of his left eye in order to reposition the eye. He proposed using the “adjustable suture technique” whereby the surgeon recesses the muscle but does not definitely tie off the sutures until the following day. On the day following the operation, a patient undergoes a further small procedure to readjust the position of the eye when he is awake. He identified the common complications that could arise as including an under-correction or over-correction anatomically, in other words, positioning the eye too far or too little beyond that which had been planned. An over-correction could lead to diplopia, i.e. double-vision, and it was his standard practice to warn patients of that complication. He told the court he would also have warned of rare complications, such as the loss or slippage of a muscle, in this case the medial rectus muscle – which could also lead to double vision – and the further remote possibility of a perforation of the eye during the procedure.

  6. Mr. Goggin accepted that he was giving the warning in this particular case to a patient who had already committed himself to having the surgery and who up to that point had no prior knowledge of any of the risks associated with the procedure he was about to undergo. Mr Goggin accepted that the ten minute conversation took place only half an hour before the operation. However, he emphasised that this was the norm at that time for day case patients.

  7. It is important to stress that the subsequent operation was carried out properly and there was no suggestion at trial of any negligence whatsoever on the part of Mr Goggin in connection therewith. On the day following the operation, Mr. Goggin performed an adjustment of the suture to maximise the improvement in the alignment of the left eye.

  8. In the months that followed, there was – unfortunately – what is noted in the medical records of the hospital as a gradual slippage of the medial rectus muscle behind the left eye. In this regard, the hospital records are to some degree at variance with the plaintiff’s own recollection, because in evidence the plaintiff told the court that, when trying to do prescribed exercises in June, 1995 he felt something “snap” in his left eye which then turned totally outwards, effectively leaving him at that point in a worse position than he was before the operation.

  9. It seems clear from the evidence at trial that the rare complication mentioned by Mr. Goggin, namely the loss or slippage of the medial rectus muscle, occurred in the case of this particular patient. Professor Peter Eustace, consultant ophthalmologist, told the trial court that muscle slippage, of the sort that occurred in the present case, was “extremely unusual”. He further gave evidence that “in clinical practice over a lifetime, he never saw such a case”. It was “unique”.

  10. In similar vein, Mr. Michael O’Keefe, consultant eye surgeon, told the court that muscle slippage was a “rare complication” and the risk of it happening “is less than 1 percent”.

  11. The consequence for the plaintiff was that he had some ongoing double vision and headaches as well as a poor cosmetic result, given that his eye had slewed outwards. In January, 1995 he underwent a further operation which on this occasion was carried out by Mr Martin O’Connor. This operation cured the outward slant of the left eye and produced a good cosmetic outcome. Vision in both eyes was noted to be good when the plaintiff was reviewed in February, 1995. The plaintiff thereafter had some continuing double vision, though less than previously, and some headaches. In May, 1997 the plaintiff was offered further surgery to address his residual problems. This would have involved working on the muscles of the right eye to match the defects of movement present in the left eye. However the plaintiff declined to avail of this option.

  12. With regard to his work and studies, the plaintiff, albeit with some difficulty, resumed his music studies in 1995. His efforts in this direction were somewhat hampered by the fact he also had ongoing sequelae from a road traffic accident in 1991 in respect of which he pursued separate legal proceedings. However he embarked upon a degree course in 1995. He completed three years of this course and then opted instead to pursue a two year diploma which he completed in 1999. In the year 2000 he obtained his MA qualification after re-sitting a particular examination. While he had hoped to play in a concert orchestra, he found that he was unable to read for periods longer than four hours. Nor could he do lecturing in Music Technology because, he said, it involved too much computer work. Instead, he took up teaching various musical instruments on a part-time basis.

    Proceedings in the High Court

  13. The hearing in the High Court was spread over eight days in November, 2003 and January, 2004. Judgment was later delivered in the High Court (White J.) on 3rd June, 2005.

  14. In the course of his judgment, White J. held, for various reasons set out in the judgment, that the plaintiff was not a credible witness. He found him to be exaggerating the extent and effect of his double vision. He also noted that in legal proceedings arising out of the road traffic accident in November, 1991, the plaintiff attributed his poor exam performance to the 1991 accident. The trial judge also noted that in October, 1994, the plaintiff was also attributing occasional blurred vision with migraine type headaches to the 1991 accident. The learned trial judge found that the plaintiff was unreliable on a variety of fronts and had failed to satisfy him, on the balance of probabilities, that Mr. Goggin had failed to warn him either of a risk of double vision arising from the operation, or from the other consequences associated with a slippage of the muscle in the left eye.

  15. The learned trial judge also addressed the issue of causation, which was to inquire, assuming the plaintiff had been given the kind of warning contended for by Mr. Goggin, whether he would nonetheless have proceeded with the operation. In this regard the trial judge stated:-

    The plaintiff gave evidence that, as a result of a comment passed on a social occasion, he began to feel self-conscious about his squint. This was the reason he sought to explore the possibility of elective surgery. On his evidence, his sole question to Dr. Goggin was directed towards cosmetic effect. The manner in which the plaintiff volunteered under cross-examination, that had he been warned of the risks of double-vision he would not have undertaken the operation, leads me to believe that perhaps the plaintiff was appraised, or appraised himself of the requisite proofs herein. Such appraisal, of itself ought not to be a determining factor on the issue, however, I consider that the plaintiff’s sole, or at least prime concern, was cosmetic effect, and that irrespective of whether or not a warning had been given, his attitude towards surgery would not have altered.

    THE APPEAL

  16. The plaintiff does not now seek to challenge the findings of fact in relation to the actual ‘giving’ of a warning on the morning of his operation by the medical practitioner in this case. Michael O’Donoghue, senior counsel for the plaintiff, informed the Court that he felt compelled, by reference to the principles enunciated by this Court in Hay v O’Grady [1992] 1IR 210, to leave undisturbed the findings of fact made by the trial judge in this respect.

  17. Instead, Mr. O’Donoghue argued, though without producing authorities in support, that the lateness of the warning was such as to render it nugatory and ineffective in law because it was given only at a time when the plaintiff had decided to have the surgery and was gowned up and about to go to theatre. Given that this was elective surgery, Mr. O’Donoghue contended that ‘consenting’ a patient in such circumstances could not be seen as adequate or satisfactory. He cited in support evidence given in the case by Mr. John Lee, consultant ophthalmic surgeon and strabismus specialist, who had stated in relation to the timing of a warning:-

    I think the appropriate time to discuss the matter in detail is at a time when you have the relevant facts that allow you make up your mind and you have a discussion with the patient in an outpatient setting.

  18. Similar evidence had been given by Mr. Michael O’Keefe, consultant eye surgeon in the Mater hospital, who told the court that, whatever the situation in 1994, he would nowadays expect that a patient in the position of the plaintiff would be fully informed of the risks and benefits well in advance of any operation and that all of this information would be documented in the notes. He stated that in elective surgery a letter would now normally go to patients telling them what the risks and benefits might be, and in many cases offering second opinions also.

  19. Evidence was also given at trial by Mr. O’Connor, who carried out the follow-up operation in January, 1995, who offered the view that it would “certainly not be appropriate” to have the first discussion of any kind in relation to possible adverse risks of surgery in the minutes before the surgery took place when the patient might well be in a state of heightened stress. He stated that when patients were referred to him, he normally took some time over an initial assessment and discussion, because it was at that stage that he was committing them to surgery. He would indicate to them what the expected outcome would be and the complications that they might find in the course of the procedure. He stated that this would take place in the clinic “weeks before” the procedure. He stressed that a layman, particularly with elective surgery, needed time to reflect on advice given. In his view it was “very inappropriate” to leave it to the last minute.

  20. On this basis, Mr. O’Donoghue invited the Court to regard the warning which had been given as being “in effect no warning” having regard to the fact that the warning was given so close to the operation, notably in circumstances where the procedure comprised elective surgery and where the plaintiff had been fully evaluated by an orthoptist who had reported on the different treatment options months ahead of the actual surgery. Mr O’Donoghue further pointed to what he described as a number of flaws in the reasoning of the trial judge in that portion of his judgment which related to causation. For example, without any evidence to support the proposition, the trial judge surmised that the plaintiff had “appraised himself” of the necessary proofs required in a court of law to establish causation. The trial judge also expressed the view that because the plaintiff’s sole or prime concern was cosmetic effect, his attitude to surgery would not have altered irrespective of whether a warning was given or not. However, he argued that commonsense would suggest the opposite: that patients are more likely to be put off by a warning from proceeding with an elective operation than would a patient for whom the operation is a necessary step. For these various reasons Mr O’Donoghue invited the Court to reverse the finding of the learned trial judge on the issue of causation if the Court was of the view that no valid warning had been given.

  21. In reply, Eugene Gleeson, senior counsel for the defendants, referred to the evidence of Professor Eustace former professor of ophthalmology in UCD and consultant in the Mater Hospital, who told the court that with “day surgery” cases the whole system of consenting patients was different, or certainly was different in 1994. At that time it was the normal practice to attend to this matter on the day of the procedure. He told the court that this had some major advantages in that the practice was for the surgeon himself to consent the patient before the surgery. He continued: “That system works as well as any system because it has been shown repeatedly that patients’ memory of what they have been told can fade from their memory”. What Mr. Goggin had done in 1994 was entirely consistent with the practice of ophthalmologists at the time. The benefit was that the surgeon could with ease discuss the matter with the patient, albeit shortly before the procedure, but would then be better able to reconnect with the detail of the case when they came from theatre and thereafter. Virtually all ophthalmic surgery was day surgery. It was common practice to use the standard form for consenting patients at the time. Mr. O’Keefe told the court that, by way of comparison, there had been a culture change by the year 2000 because of increased litigation and the perception of the importance of informed consent.

  22. Mr. Gleeson submitted that in such circumstances the warning given was appropriate both in content and timing by the standards of 1994 and that the learned trial judge had not found otherwise. The plaintiff was now trying to make a completely different case on appeal, namely, that the warning given was of no effect because it was given so late, a case which was inconsistent with that made at trial to the effect that he was never warned of anything. No case had ever been made at trial that any warning given was given too late. The trial judge had not found the plaintiff to be a credible witness and it was not possible to divide up selectively the plaintiff’s evidence into credible and non-credible segments so as to reverse the finding of the trial judge in relation to the issue of causation.

    Legal Principles

    (a) The obligation to warn

  23. This case provides the Court with the first opportunity in many years to revisit in any detail the issue of informed consent since the matter was last addressed in Walsh v Family Planning Services Ltd [1992] 1IR 496. In that case all five judges of this Court were at one in holding that in elective surgery any risk which carries the possibility of grave consequences involving ongoing severe pain for the patient must be disclosed. Although different members of the court approached the issues by reference to different principles, they arrived at the same conclusion in relation to two critical questions, that is to say:-

    1. The requirement on a medical practitioner to give a warning of any material risk which is a “known complication” of an operative procedure properly carried out

    2. The test of materiality in elective surgery is to enquire only if there is any risk, however exceptional or remote, of grave consequences involving severe pain stretching for an appreciable time into the future.

  24. Part of the Court in Walsh took the view that the standard of care to be exercised by a medical practitioner in giving a warning of the consequences of proposed surgical procedures was not in principle any different from the standard of care to be exercised by medical practitioners in giving treatment or advice, as laid down in Dunne (an infant) v National Maternity Hospital [1989] IR 91. However, other members of the Court, notably O’Flaherty J, expressed a clear preference for the “reasonable patient” test as offering a better yardstick for assessing the scope of the duty to warn. The reasonable patient test is one whereby the patient has the right to know and the practitioner a duty to advise of all material risks associated with the proposed form of treatment. In the course of a judgment which I delivered in Geoghegan v Harris [2000] 3 IR 536, a case in which a remote chance in thousands eventuated, I expressed my own preference for the views of O’Flaherty J in Walsh.

  25. What might be described as the “doctor centred” approach, had been the law for many years in England and Wales, having been established in cases such as Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 and Sidaway v Bethlem Royal Hospital Governors [1985] 1 A.C. 871. Those cases established that a medical practitioner’s duty to warn was to be assessed in accordance with the practice accepted at the time as proper by a responsible body of medical opinion. While the decision as to what risks should be disclosed to the particular patient to enable him to make a rational choice whether to undergo the particular treatment was primarily a matter of clinical judgment, the disclosure of a particular risk of serious adverse consequences might, in a given case, be so obviously necessary for the patient to make an informed choice that no reasonably prudent doctor could fail to disclose the risk, and if there was such a failure, the medical practitioner could be found in breach of the duty to disclose. Only Lord Scarman, in his minority judgment in Sidaway opted for the “prudent patient” test at that stage.

  26. However, more recent cases suggest that the courts in England have moved from the “Bolam” test to a version of the “reasonable patient” test as is evident from the following formulation of the duty expressed by Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust [1999] 48 BMLR 118, in which he stated:-

    In a case where it is being alleged that a plaintiff is being deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt .... Obviously, the doctor, in determining what to tell a patient, has to take into account all of the relevant considerations, which include the ability of the patient to comprehend what he has to say to him and the state of the patient at the particular time, both from the physical point of view and an emotional point of view. There can often be situations where a course different from the normal has to be employed. However, where there is what can realistically be called “significant risk”, then, in the ordinary event, as I have already indicated, the patient is entitled to be informed of that risk.

  27. Thus, while ostensibly applying both Bolam and Sidaway, Lord Woolf construed the latter case as indicating that if there was a significant risk which would affect the judgement of a reasonable patient, then in the normal course it would be the responsibility of a doctor to inform the patient of that significant risk so that the patient could determine for himself or herself the course he or she should adopt.

  28. The passage I have just cited from the judgment of Lord Woolf in Pearse v United Bristol Healthcare NHS Trust was referred to approvingly by Lord Steyn who formed part of the majority in the House of Lords in Chester v Afshar [2005] 1 AC 134. Lord Bingham, who with Lord Hoffman formed the minority, stated as follows in his dissenting speech (at par. 5):-

    The existence of such a duty is not in doubt. Nor is its rationale: to enable adult patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies.

    Lord Hope (at par. 86) affirmed the duty in these terms:-

    I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on.

  29. It should perhaps also be said that the “patient centred” approach has been adopted in virtually every major common law jurisdiction, including Australia (Rogers v Whitaker (1992)175 CLR 479), Canada (Reibl v Hughes [1980] 2 S.C.R. 880) and the United States (Canterbury v Spence (1972) 464 F. 2d 772).

  30. In Rogers v Whitaker (1992) 175 CLR 479 at 490, the High Court of Australia set out the rule as being that :-

    The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

  31. The topic has received close scrutiny in Australia where the test or rule in Rogers was further endorsed by the same court ten years later in Rosenberg v Percival [2001] HCA 18, a case in which Kirby J. recognised that the patient centred test, as adopted in Rogers, was undoubtedly a strict one. He recognised that various arguments had been mounted in response to Rogers and decisions like it, suggesting that the legal rule should be confined, as far as authority permits, by reference to practical considerations. Kirby J. (at para. 143) set out arguments for confining the rule under various headings from which I have extrapolated the following:-

    1. That some patients would not wish to be unsettled by unnecessary disclosures by professional experts whom they trust, or about risks or concerns that, in any case, they would only understand imperfectly;

    2. That it is impossible, within sensible time constraints, for a professional person to communicate the detail of every tiny complication that may accompany medical procedures;

    3. That the efficacy of warnings against slight risks had not been objectively established;

    4. That belief in the efficacy of warnings is a lawyer’s fancy which other lawyers then seek to circumvent by drafting substantial consent and waiver forms.

  32. Having outlined those arguments for confining the rule, Kirby J. went on (at para 145) to identify a number of reasons of principle and policy which appeared to him to underpin the validity of the patient centred approach favoured in Rogers v Whitaker, from which, again, I have extrapolated the following:-

    1. The rule recognises individual autonomy which should be viewed in the wider context of an emerging appreciation of basic human rights and human dignity which requires informed agreement to invasive treatment, save for that which might be required in an emergency or otherwise out of necessity;

    2. Reality demands a recognition of the fact that, sometimes, defects of communication will justify the imposition of minimum legal obligations so that even medical practitioners who are in a hurry, or who may have comparatively less skill or inclination for communication, are obliged to pause and provide warnings of the kind mandated by Rogers;

    3. Such obligations redress, to some small degree, the risks of conflicts between interest and duty which a medical practitioner may sometimes face in favouring one healthcare procedure over another;

    4. The legal obligation to provide warnings may sometimes help to redress the inherent inequality and power between a medical practitioner and a vulnerable patient;

    5. That provision of detailed warnings will enable the ultimate choice to undertake or refuse an invasive procedure to not only rest, but also be seen to rest, on the patient rather than the healthcare provider thereby reducing the likelihood for recriminations and litigation following the disappointment that sometimes ensues in the aftermath of treatment.

  33. The analysis undertaken by both Kirby J and the other members of the High Court of Australia in Rosenberg v Percival supports the argument that the giving of an adequate warning, far from being a source of nuisance for doctors, should be seen as an opportunity to ensure they are protected from subsequent litigation at the suit of disappointed patients. I am thus fortified to express in rather more vigorous terms than I did in Geoghegan v Harris my view that the patient centred test is preferable, and ultimately more satisfactory from the point of view of both doctor and patient alike, than any “doctor centred” approach favoured by part of this Court in Walsh v Family Planning Services.

    (b) Content of the warning

  34. Insofar as the nature of any warning is concerned, this Court is not free to depart from the views expressed by a court of five members in Walsh to the effect that a warning must in every case be given of a risk, however remote, of grave consequences involving severe pain continuing into the future and involving further operative intervention. However, Walsh addresses only a limited category of cases where ongoing severe pain involving further operations is the downside risk. No risk of ongoing severe pain was present in the instant case and I do feel free to distinguish this case – to any limited extent that may be necessary – from the views expressed in Walsh to offer a somewhat less extreme view of the scope of the duty in cases where ongoing severe pain involving further operations is not one of the known complications.

  35. I would see as more reasonable for those cases the test outlined by Lord Woolf, namely, that if there is a significant risk which would affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk. This is still an onerous test and not dissimilar from the requirement enunciated in Rogers v Whitaker, and in this context I would regard the words “significant risk” and “material risk” as interchangeable. In Geoghegan v Harris I suggested that any consideration of “materiality” would involve consideration of both

    1. the severity of the consequences and

    2. the statistical frequency of the risk.

    Putting it another way, a risk may be seen as material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it. I am leaving to one side here considerations of those cases where the medical practitioner may be aware that the particular patient, if warned of the risk, would be likely to attach significance to it where another patient might not. As I stressed in Geoghegan v Harris (at p. 549):-

    The reasonable man, entitled as he must be to full information of material risks, does not have impossible expectations nor does he seek to impose impossible standards. He does not invoke only the wisdom of hindsight if things go wrong. He must be taken as needing medical practitioners to deliver on their medical expertise without excessive restraint or gross limitation on their ability to do so.

  36. At the start of this appeal, Mr Michael O’Donoghue, senior counsel for the plaintiff informed the Court that there was no longer any challenge in respect of the finding by the trial judge that a warning of the sort contended for by Mr Goggin was in fact given to the plaintiff, nor was there any dispute as to its content. Nor was it in dispute that the warning found to have been given covered the significant or material risk. The complaint of the plaintiff is now solely confined to the validity of the warning having regard to the time at which it was given.

    (c) Time of warning

  37. Given that the plaintiff, for the purposes of this appeal at least, now accepts that a comprehensive warning was given, the only remaining issue in relation to the duty to warn is to consider whether a warning delivered very shortly before an operation is sufficient to discharge the duty of care on the medical practitioner. While no such case was advanced prior to or at trial, I am of the view that some latitude must be extended to the plaintiff to have this issue considered nothwithstanding the rejection of the plaintiff’s evidence by the learned trial judge because an invalid warning, that is to say one which the plaintiff could neither assimilate or act upon, would be equivalent to no warning

  38. There are obvious reasons why, in the context of elective surgery, a warning given only shortly before an operation is undesirable. A patient may be stressed, medicated or in pain in this period and may be less likely for one or more of these reasons to make a calm and reasoned decision in such circumstances. In the instant case, the plaintiff had his eyesight fully tested and evaluated four months before his operation and the options for surgical intervention were plain from the orthoptist’s report from that time. The plaintiff was seen on three occasions prior to his operation. The risks associated with squint surgery could have easily been explained to the plaintiff at any of these meetings, or certainly well in advance of the time when they were explained – a mere 30 minutes before his operation. While I have noted the views of a number of the experts to the effect that this practice of warning day patients on the day of their operation had its advantages, it seems to me that the disadvantages were far greater, including the possibility of an embittered patient later asserting that he was too stressed or in too much pain to understand what was said or to make a free decision and that he was thus effectively deprived of any choice.

  39. That said, the plaintiff in this case gave no evidence of being unduly stressed or anxious on the day of his operation, he was not in pain and had not been sedated prior to his operation. He was facing into what could fairly be described as a minor operation only. His evidence suggested he was in a clear and lucid mental state on the day of the operation and well capable of making a decision. He described how his conversation with Mr Goggin was both cordial and relaxed. While the plaintiff said he would have “walked straight out of the hospital” had he been warned on the day, he did not say he could not deal with a warning given at that point in time. In fact he said the opposite. In the absence of clear evidence that the plaintiff was actually disadvantaged in some material way by the lateness of the warning, I would not, on the facts of this case and without more, declare or find the warning given to be invalid because it was given at a late stage. There is nothing in the evidence to suggest the plaintiff could not assimilate or properly understand what he was being told. I would make the point strongly however that in other cases where a warning is given late in the day, particularly where the surgery is elective surgery, the outcome might well be different.

  40. As I am satisfied as to the validity of the warning given in this case, it is unnecessary to consider the issue of causation in any detail. The requirement to do so would only arise where there had been a finding that no warning, or no adequate warning, had been given in the particular case.

  41. For the sake of completeness however I think I should say that, even had I concluded that the warning given on the day of the operation in this case was void or ineffective, I would not consider the trial judge’s finding on causation to have been mistaken. If it were necessary to apply an objective test as to what a reasonable patient would have done if warned days or weeks in advance of his operation in an outpatient setting of the particular risk which later arose in this case, I am satisfied that such a patient, anxious to achieve a cosmetic improvement to his eyes, would, having placed the benefits of the proposed surgery in balance with the statistically remote risk of muscle slippage causing diplopia, have nonetheless opted to proceed with the surgery.

  42. I would dismiss the appeal herein and affirm the order of the learned High Court judge.


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