'In my view the question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient 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, but by the court's view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes.' (emphasis added)"
46 Sections 5O and 5P of the Civil Liability Act are relevant. Although their role and importance are not in contest, they were referred to by the Court of Appeal in Ambulance Service of NSW v Worley [2006] NSWCA 102 at [39] as follows:
"[39] At least in relation to New South Wales, the reference to the statutory imposition of the Bolam test, or at least a variety of it, is contained in ss 5O and 5P of the Civil Liability Act 2002 (NSW). Those provisions maintain the dichotomy suggested in Rogers between a breach of duty to give a warning or other information, and other forms of professional negligence: the Bolam principle (in its statutory form) applies only to the latter. The Civil Liability Act does not, it should be noted, apply to the present case. However, the broader point made by McHugh J as to the nature of the exercise to be undertaken by the Court in assessing negligence by other professionals, is relevant."
47 What are the facts and circumstances, the possibility of the occurrence of which constitutes the relevant risk in this case? The risk was an inherent risk of the procedure. Moreover, it was a significant risk in this case because of the plaintiff's weight. This increased both the likelihood of the occurrence of bilateral femoral neurapraxia at all, as well as the extent and degree to which it might affect the plaintiff if it did occur. A warning tailored to an obese patient, such as the plaintiff, who was not only likely but probably certain to be in a prone operating posture for in excess of six hours, should have incorporated a reference to this condition and its potential to result from the surgery as an unavoidable risk. The relevant risk is the possibility that the proposed surgery in these circumstances may result in the neurapraxia that in fact occurred.
48 Was the risk material? This requires an answer to two further questions. Would a reasonable person in the plaintiff's position, if warned of the risk, have been likely to attach significance to it? Could it be said that Dr Kam was or should reasonably have been aware that the plaintiff, if warned of the risk of bilateral femoral neurapraxia, or its associated symptoms or consequences, would have been likely to attach significance to it? I consider that both questions should be answered yes.
49 It is not the same thing to say that, if the plaintiff had been warned of the risk but would nonetheless have proceeded to have the surgery, the risk was therefore not material. In other words, the decision that a particular patient may take when warned of the risk is not necessarily coextensive with or conclusive of a determination of the materiality of that risk. A particular material risk may persuade some prospective surgical candidates to proceed to surgery and take the risk, whilst others faced with the identical risk may not be prepared to do so. The inquiry at the breach stage is informed by the question of whether or not a reasonable patient in the position of the plaintiff would attach significance to the risk, not whether a reasonable patient in the position of the plaintiff would attach significance to the fact that the risk came home. A reasonable person in the position of the plaintiff would have been housebound and bedridden due to a combination of back pain and obesity for many weeks in the period leading up to the contemplated surgery. The prospect of any further, even if only but not necessarily temporary or transitory, interference with his mobility, would in my opinion be something to which he would in the circumstances of this particular case be likely to attach significance.
50 Dr Kam himself conceded that his usual practice in dealing with a morbidly obese man such as the plaintiff should have included a specific warning about the risks of local nerve damage by virtue of the prolonged operating position involved. This concession was in one sense no more and no less than a reasonable and proper recognition of the need to tailor the preoperative explanation to a patient, as opposed to the giving of a general warning, in the way recommended by Mr Sears and accepted by Mr Weaver. A person in the position of this plaintiff arguably approached the prospect of a posterior lumbar interbody fusion with a background that set him apart to a certain extent from the first time surgical candidate with no distinguishing idiosyncrasies. Dr Kam should in my opinion have formulated a warning of the risks confronting the plaintiff with an appreciation or at least an expectation that the possibility of local nerve damage with its associated symptoms or consequences was something to which he would be likely to attach significance.
51 In my opinion the plaintiff should have been warned of the potential risk of local nerve damage and/or of its associated symptoms or consequences. The failure by Dr Kam to do so in the circumstances of this case amounted to a breach of his duty to the plaintiff. I do not consider that a reasonable person in Dr Kam's position would not have taken the precaution of warning of the risk, even having regard to the probability of the harm of which Mr Sears and Mr Weaver both spoke. Because of the complex multifactorial condition or co-morbidities of the plaintiff, the likely seriousness of the harm was not necessarily minimal, even though it ultimately, but irrelevantly for present purposes, turned out to be so.
The injury issue
52 Mr Hugh Weaver and Mr William Sears produced a joint report dated 14 May 2010 following a conference between them on that day. Mr Weaver is an orthopaedic specialist retained by the plaintiff. Mr Sears is a spinal neurosurgeon retained by Dr Kam. By reason of the way in which the issues in the plaintiff's case have become limited, much of the opinions expressed in the joint report are now not critical to the outcome in this case. However, to the extent that the joint opinion informs any of the remaining issues, it consists in the following series of questions and answers:
1. Was it reasonable to recommend surgery on 5 October 2004 given the symptomatology complained of by the plaintiff?