Now available online from the UNSW Law Journal as an advance copy is an article by Rebekah McWhirter, ‘Informed Consent and Performance Data: Clinician Experience as a Material Risk’ (2017) 40(2) University of New South Wales Law Journal. Drawing from the introduction:
As the collection, analysis and dissemination of surgical performance data becomes increasingly commonplace, it is worth determining whether, and under what circumstances, a surgeon has a duty to disclose this information to his or her patients. This article will first establish the extent to which surgical skill has been an issue in failure to warn complaints in the past, and the potential for it to be a significant future issue. The duty to warn will then be assessed with reference to statutory obligations and relevant case law. Finally, policy considerations arising from a duty to disclose performance data will be explored to identify possible future limits.