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The responsibility for medical practitioners to provide adequate warning of risks associated with surgery and obtaining informed consent can be complicated in instances where a patient's ability to communicate in English is limited. Complaints arising from such scenarios are increasingly referred to regulatory agencies such as the Australian Health Practitioner Regulation Agency (AHPRA) and the Health Services Commission (HSC).

The decision of Biggs v George clarifies what is reasonably expected of a medical practitioner when advising patients of the potential risks associated with any procedure and ensuring steps are taken to obtain informed consent from a person who has limited English language skills. The decision reinforces that a practitioner's duty is to take reasonable steps to explain the "material risks" of a surgery rather than all potential risks associated with any procedure. What is deemed to be material is assessed by the practitioner on a case-by-case basis.

Background

In 2009, Ms Sandra George underwent an operation to remove an acoustic neuroma. Ms George is a Macedonian-speaker with limited English skills. Before the procedure, Ms George had required the assistance of interpreters at her consultations with Dr Nigel Biggs at St Vincent's Hospital. During the first two consultations, Ms George's friend acted as translator. For the following two consultations Ms George used an accredited interpreter.

During the operation, a facial nerve was severed, causing Ms George to subsequently suffer from facial palsy. In 2012, Ms George commenced legal proceedings against Dr Biggs and the Hospital. She alleged the operation was conducted negligently and that Dr Biggs and the Hospital failed to warn her of the risk of damage to the facial nerve.

Decision at first instance

The District Court of New South Wales dismissed the allegation of intra-operative negligence, however, did find that there had been a failure to warn. Ms George was awarded $331,000 in damages.

Court of Appeal decision

Dr Biggs and the Hospital appealed. The issues for determination by the Court of Appeal were whether:

  • the duty of care of a medical practitioner in warning a patient of risks associated with a surgical procedure, where effective communication relied on translation, was correctly articulated at trial
  • adequate warnings as to the relevant risk/s had been given, and
  • a failure in communication materially affected Ms George's decision to have the operation.

The Court of Appeal upheld the appeal and set aside the judgment in Ms George's favour. The Court made the following observations:

  • A medical practitioner is required to warn a patient of "material risks" associated with proposed procedures. A risk is "material" if it is a risk to which a reasonable person in the position of the patient "would be likely to attach significance in choosing whether or not to undergo a proposed treatment". In Ms George's case, it was not in dispute that the procedure carried significant risk of the injury that eventuated.
  • Given the language barriers between Ms George and Dr Biggs, Dr Biggs was required to take reasonable care to ensure the "material risks" were conveyed to Ms George and that she understood them.
  • Given an accredited Macedonian interpreter was used during the consultation between Dr Biggs and Ms George, only unusual circumstances regarding interpreting issues would form the basis for a breach of duty on the part of Dr Biggs. Dr Biggs outlined that it is his standard practice to inform the patient of the important risks associated with the contemplated procedure when surgery is being considered. In this instance, the primary risk was injury to the facial nerve. The judge accepted this evidence.
  • In Ms George's claim, it had to be established that negligence on the part of Dr Biggs was a "necessary condition of the occurrence of the harm", and that Ms George would not have undergone the procedure had she been made aware of the risk of injury to the facial nerve. Evidence at trial showed that Ms George's belief that her tumour required surgery was not attributable to any breach of duty by the hospital or medical practitioners.

Sufficiently meeting the duty to warn

The Court of Appeal judgment confirms the long-established principle that medical practitioners (and by extension hospitals and medical centres) are required to take reasonable steps to ensure patients understand material risks. In meeting this duty of reasonably taking steps to explain material risks to those with limited English language skills, the use of an accredited interpreter of the patient's language to convey material risks will generally be sufficient to meet this requirement.

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