Case summary | Patient sues urologist for failing to inform him of an alternative to surgery

by | Nov 2, 2020 | Health Blog

A patient, who suffered post-operative complications following the surgical removal of his prostate as treatment for prostate cancer and sued his urologist in negligence for failing to inform him of the potential viability of radiation therapy as an alternative to surgery, has been unsuccessful in his claim.

The background

In February 2017, Mr Hamlyn was diagnosed with Gleason Grade 7 prostate cancer. He was advised by his urologist, Dr Stanton, that he required active treatment. Relevantly, Dr Stanton discussed with Mr Hamlyn the merits of both surgery and radiation therapy, and the advantages and disadvantages of both forms of treatment. However, Dr Stanton did not inform Mr Hamlyn of the possibility of receiving assessment by a radiation oncologist.

In reliance upon Dr Stanton’s advice, Mr Hamlyn elected to undergo surgery, known as a ‘radical prostatectomy’, involving the removal of the prostate. Mr Hamlyn received that treatment and the cancer was removed. Although he was cleared of the tumour, there were multiple complications. Most significantly, Mr Hamlyn complained of on-going and significant urinary and faecal incontinence and associated stress and anxiety.

Mr Hamlyn sued Dr Stanton for damages for personal injury. He brought claims in negligence and also for non-compliance with the consumer guarantee that he would render services with due care and skill pursuant to section 60 of the Australian Consumer Law.

At trial, Mr Hamlyn argued that “…if he had been meaningfully informed about and offered an alternative form of treatment, involving radiation therapy, he would have elected to have undertaken the radiation therapy and, in so doing, he would have avoided the complications associated with the surgery which he said he suffered”. He went on to argue that “Dr Stanton should have referred him, or offered to refer him, to a radiation oncologist to receive information and advice about that form of treatment so he could make a fully informed decision about what form of treatment he should receive”.

The Court considered the application of section 5O of the Civil Liability Act 2002 (NSW) in respect of the alleged negligent omission to inform Mr Hamlyn as to the possibility that he might obtain a specialist radiation oncologist’s assessment.

The Court found that section 5O would not have been applicable to the part of the case concerning the provision of negligent information. This is because the conduct (in this respect an omission) was not associated with the provision of a diagnosis or treatment, which is contemplated in section 5O, rather, it was associated with the provision of information, which is contemplated in section 5P. Section 5P carves out an exception to the applicability of section 5O where the negligence arises from the provision of information or advice relating to personal injury associated with the provision of a professional service.

The question for the Court was not to determine whether or not Mr Hamlyn received all the information and advice pertaining to the forms of treatment for his cancer or whether Dr Stanton followed a radiation oncologist’s opinion of what was ‘best practice’. It was whether what Dr Stanton said or did, or omitted to say or do, was so unreasonable as to be negligent; or, as expressed in section 5B, a failure to take a precaution that a reasonable person in Dr Stanton’s position would have taken.

The outcome

The Court rejected the allegation that Dr Stanton was negligent in failing to inform Mr Hamlyn that he should obtain a radiation oncologist’s assessment. The Court held that reasonable precautions did not require Dr Stanton to even inform Mr Hamlyn of the possibility of radiation oncologist assessment. That being the case, the Court found that it must follow that reasonable precautions did not require Dr Stanton to offer to refer Mr Hamlyn for such assessment either.

Ultimately, the Court was not persuaded that Dr Stanton breached his duty of care or did not comply with section 60 of the Australian Consumer Law. Further, the Court was not persuaded that Mr Hamlyn would have been better off undergoing radiotherapy than he was by receiving surgery. Even if the Court found a breach of duty, Mr Hamlyn did not establish factual causation.

Implications

This case provides further comfort to medical practitioners and their medical defence organisations that reasonable and appropriate advice and explanation provided during the consultation will be sufficient (in most cases) to discharge their duty to warn. Providing relevant literature to the patient is also useful. Needless to say, keeping adequate notes of such consultation is also of critical importance, from an evidential perspective.

The decision in Hamlyn v Stanton (No 3) [2020] NSWDC 632 can be read here.

Manuela Lalli

Manuela Lalli