Informed consent and usual practice of doctors

by | Mar 24, 2019 | Health Blog

Phelan v Melbourne Health [2019] VCC 241 saw a plaintiff’s claim dismissed after he was not able to prove that doctors failed to advise of the existence of a surgical treatment option.

On 21 January 2013, the plaintiff jumped from the balcony of a second storey building, intending to land in the swimming pool below. Unfortunately, he missed the pool and suffered comminuted fractures to the calcaneal bones in each ankle. He was taken to the Royal Melbourne Hospital (the defendant’s hospital), where he was treated conservatively. He was discharged five days later, and subsequently attended follow-up appointments at the defendant’s Orthopaedic Outpatient Clinic over the following two weeks, at which time he was advised not to weight bear for a period of three months.

Following his final appointment at the Orthopaedic Outpatient Clinic, the plaintiff sought a second opinion from an orthopaedic surgeon, soon after which he underwent surgery to his left ankle, but not his right ankle.  The plaintiff said that he received an excellent result from this surgery.

It was the opinion of each of the orthopaedic surgeons in this case, that there is a limited window of time (four to six weeks) within which surgical treatment of a calcaneal fracture can be performed.

The plaintiff alleged that the defendant failed to inform him of the option of surgical treatment for his calcaneal fractures, and that, had he been so informed, he would have elected to undergo such surgery to his right ankle within the relevant time period. He further claimed that, had he undergone the surgery to his right ankle, he would have received a better outcome.

The defendant denied that it was negligent in failing to advise the plaintiff of this surgical treatment option. It relied upon evidence provided by its medical staff and independent expert opinions to allege that surgery was contraindicated throughout the period in which the plaintiff was treated by the defendant, on the basis that he was a smoker, and had extensive swelling in both his ankles. Notwithstanding that such surgery was not recommended by the doctors at the hospital, the defendant alleged that it advised the plaintiff of this treatment option on several occasions while he was an inpatient at the hospital.

None of the defendant’s doctors could recall what they had said to the plaintiff, as none had any independent recollection. Instead, the doctors gave evidence based upon their clinical notes and usual practice in regards to the advice provided to patients with such injuries, including surgery and the reasons for which non-operative treatment would have been recommended. The plaintiff himself was not certain of the specifics of what he was and was not told. However, he was adamant that the surgical option was never discussed with him.

The court considered both the plaintiff and the defendant’s doctors to be credible witnesses, but on the evidence was not satisfied that the plaintiff had discharged his legal burden and established his allegation that he was not adequately informed of the surgical treatment option.

The court was also not satisfied that the performance of surgery within the relevant timeframe would have, on balance, resulted in the plaintiff achieving a better outcome than the one which eventuated. The plaintiff’s claim was therefore dismissed.

To read the decision in Phelan v Melbourne Health [2019] VCC 241, click here.

Enore Panetta

Enore Panetta