Failure to warn a non-English speaking patient & reasonable witness expenses

Biggs v George [2016] NSWCA 113 is a decision today of the NSW Court of Appeal, in a matter which touched on a range of matters including:

  • An allegation of failure to warn a non-English speaking patient of material risks;
  • Whether the decision of the patient was based on a misunderstanding for which the doctors were not responsible;
  • Evidence by doctors of their  usual practice; and
  • Reasonable expenses of an expert witness procured for cross-examination under subpoena.

The summary provided by the court reads as follows:

In November 2009 Ms Sandra George, a Macedonian-speaker with a poor grasp of English, underwent an operation to remove an acoustic neuroma, a tumour on the sheath of an acoustic nerve. The operation was performed following consultations in which Ms George had been assisted by interpreters. On the first two occasions, held at a clinic run by St Vincent’s Hospital in Moree where Ms George lived, a friend translated for her. On the latter two occasions held at St Vincent’s Hospital in Sydney, she was provided with an accredited interpreter. During the course of the operation an adjoining facial nerve was severed which resulted in her suffering from facial palsy. In 2012 Ms George commenced proceedings in the District Court claiming damages for negligence against the surgeon, Dr Nigel Biggs, and St Vincent’s Hospital Sydney Ltd, for vicarious liability of its medical staff. Her allegations of negligence were directed at the way the operation was carried out, and for an alleged failure to warn her of the risk of damage to the facial nerve: it not being in dispute that the principal operation carried a significant risk of the injury which eventuated. The District Court dismissed the complaint of intra-operative negligence, but upheld the allegation of failure to warn, awarding Ms George $331,000 in damages. Dr Biggs and the hospital appealed.

The issues for determination on appeal were whether:

(i)   the duty of care of a medical practitioner in warning a patient of risks attendant upon a surgical procedure (where effective communication relied on translation) was correctly articulated at trial, if not, the scope of the obligation was overstated;

(ii)   adequate warnings as to risk had been given;

(iii)   the failure in communication materially affected the claimant’s decision to have the operation; and

(iv)   the loss suffered by an expert witness for the claimant subsequently procured under subpoena for cross-examination by the appellants was properly assessed.

The Court held (per Basten JA, Ward and Payne JJA agreeing) in upholding the appeal and setting aside the judgment in favour of Ms George.

In relation to (i)

1.   A correct statement of the content of the duty of care owed by a medical practitioner to a patient with a language barrier, is that medical practitioners take reasonable care to ensure that the material risks attending a surgical procedure are conveyed, and that the practitioners satisfy themselves that the substance of the information has been conveyed and been understood: [28].

Rogers v Whitaker (1992) 175 CLR 479; Wallace v Kam (2013) 250 CLR 375, discussed.

In relation to (ii)

2.   The evidence may have allowed for a finding of misunderstanding on the part of the claimant, but failed to demonstrate that there had been a breach of the duty of care, as properly articulated: [50]. The findings explained the claimant’s denials that the risks had not been adequately explained: [62]-[63].

3.   Dr Biggs was not given an opportunity to answer the serious claim that he had falsely certified that important steps towards obtaining consent to undergo surgery (including warnings as to risks), had been taken. Absent this opportunity, the finding that no adequate warning as to risk had been given should not have been made: [75].

In relation to (iii)

4.   The question as to causation posed by s 5D of the Civil Liability Act 2002 (NSW) required consideration of whether the claimant would have had the operation but for the alleged breach of duty: [114]. The evidence at trial indicated that Ms George held a belief concerning her tumour and the need for surgery which was not attributable to any breach of duty by the hospital or the medical practitioners. Any failure to warn was therefore not causative, as required by s 5D(1): [128].

In relation to (iv)

5.   Where a specific provision relating to costs is inconsistent with a general provision, the specific provision will qualify the general provision: [135]. A party procuring the attendance of an expert under subpoena is liable to pay “conduct money or witness expenses”, r 31.30(4) UCPR: [140]. These costs should not include expenses incurred by the witness with respect to work done for the instructing party, nor for attendance at court, where that party, being in control of the course of the litigation did not inform the witness sufficiently clearly of when he would and would not be required: [154].

Bank of New South Wales v Withers (1981) 52 FLR 207 referred to.

6.   The payment was to reflect the loss suffered by the witness, not the value he placed on his time. When the evidence did not reveal his actual loss, it was appropriate to calculate a figure based on the rate per hour agreed between the professional associations representing solicitors and expert medical witnesses: [159].

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