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Sidaway v Bethlehem Royal Hospital  AC 871 House of Lords Facts C underwent an operation where there was an inherent small 2% risk that even if performed properly, might lead to spinal damage. C was unlucky and ended up severely disabled. C sued the hospital and the deceased surgeon. The surgeon had told C that there was a chance of disturbing a nerve and the consequences, he did not tell her about the possible damage to the spinal chord. Held Lord Scarman (dis)
The question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient o is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations.
? It is wrong that medical judgment should determine whether there exists a duty to warn of risk and its scope as it would be strange to permit doctors to determine when a duty to warn arises.
While it can't be faulted on the Bolam test o his patient may have been deprived of the opportunity to exercise her right of decision in the light of information which she, had she received it,
? might reasonably have considered to be of importance in making up her mind. o It is a sound and reasonable proposition that the doctor should be required to exercise care in respecting the patient's right of decision.
? A patient may well have in mind circumstances, objectives, and values which he may reasonably not make known to the doctor
but which may lead him to a different decision from that suggested by a purely medical opinion.
The doctor's duty can be seen, therefore, to be one which requires him not only to advise as to medical treatment o but also to provide his patient with the information needed so the patient can balance the medical advantages and risks alongside for example,
? his family, business or social responsibilities of which the doctor may be only partially, if at all, informed Held Lord Diplock (maj)
The Bolam test is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient in the exercise of his healing functions o In matters of diagnosis and the carrying out of treatment the court is not tempted to put itself in the surgeon's shoes;
? it has to rely upon and evaluate expert evidence, remembering that it cannot give effect to any preference it may have for one responsible body of professional opinion over another,
provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion.
Often the only effect that mention of risks can have on the patient's mind, if it has any at all, o can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo.
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