It is not sufficient to establish that a warning should have been given but was not given to entitle a patient to recover damages. The patient must prove that had they been given a proper warning they would have opted to forgo the procedure. The Supreme Court in the case of Walsh –v- Family Planning Services held that the Defendants were obliged to give a warning to the Plaintiff of any material risk which was a known or foreseeable complication of an operation. Regardless of the remote nature of that risk because it was a known complication a warning had to be given.
In the case of Geoghegan –v- Harris the High Court delivered a judgment on the principles applicable to informed consent to elective treatment. The Judge stated that a court should consider the problem from an objective point of view which would be what a reasonable person, properly informed would have done in the Plaintiff’s position. In the Plaintiff’s position can be taken as meaning the Plaintiff’s age, pre existing health, family and financial circumstances and the nature of the surgery. The Judge held that as a general principle, a patient has a right to know and the doctor a duty to advise of material risks associated with any form of treatments.
A negligence action based on failure to disclose risk was unsuccessful in the case of Fitzpatrick –v- White. In this case the Plaintiff claimed damages for injuries suffered as a result of alleged negligence of the Defendant in carrying out an operation to correct a squint in his eye. The Plaintiff alleged that the Defendant had failed to warn him of the risk of double vision occurring in the aftermath of the procedure. The Defendant maintained that the Plaintiff had been fully informed of the risk of double vision and denied negligence.
The Supreme Court held that a warning must, in every case be given of a risk, however remote, of grave consequences involving severe pain continuing into the future. In the Fitzpatrick case there was no risk of ongoing severe pain.
