Most medical treatments and procedures come with an element of risk.
If a medical practitioner fails to provide a patient with information in relation to risks and one of those risks or adverse outcomes eventuates, despite reasonable care being taken by the practitioner, it is natural for a patient to genuinely believe that they would not have had procedure had they known of the risk of the adverse outcome which did in fact eventuate.
The Civil Liability Act makes it quite difficult for a patient to establish causation in failure to warn cases. In other words, the Civil Liability Act is specifically intended to counteract the natural tendency of injured patients to give evidence they would not have had the procedure that caused their injury had they known of the risk.
A Plaintiff is unable to give evidence to the effect that they would not have had the procedure had they known of the risk.
The Court will determine whether it was likely that the Plaintiff would have had the procedure had they known of the risks on the basis of other evidence before the Court, specifically in relation to the likelihood of the risk eventuating and the necessity of the treatment being provided.
If you weren’t warned of a risk, please let us advise you as to whether or not you may proceed on that basis.