RICHARD MAHONEY* FOREWORD

Transcription

1 INFORMED CONSENT AND BREACH OF THE MEDICAL CONTRACT TO ACHIEVE A PARTICULAR RESULT: OPPORTUNITIES FOR NEW ZEALAND'S LATENT PERSONAL INJURY LITIGATORS TO PEEK OUT OF THE ACCIDENT COMPENSATION CLOSET RICHARD MAHONEY* FOREWORD As this article was being sent to the printers, the judgment of Bisson J in MacDonald v The Accident Compensation Corporation a was released. This decision, which will not be appealed by the Corporation, heralds a new and more liberal approach to the interpretation of which adverse consequences of medical treatment will give rise to compensation payments under New Zealand's accident compensation scheme. In MacDonald the complication which developed after radiation therapy and subsequent surgery was a faecal fistula (a leak in the bowel). There was no medical negligence shown and although the experts agreed that there was always a slight possibility (a risk in the range of one percent) of a faecal fistula developing from any intestinal surgery, they were "staggered" when it occurred to Ms MacDonald. In determining that Ms MacDonald had not suffered a "medical misadventure" (and was therefore not entitled to any compensation under the accident compensation scheme), Judge. Middleton, the Appeal Authority,b was simply following the then current approach, which is set out in the body of this article. In rejecting this restrictive approach Bisson J expressed many of the concerns and criticisms which are also set out in this article. Although he looks to the judgment of Speight J in Accident Compensation Corporation v Auckland Hospital Board c for support, Bisson J in MacDonald is clearly breaking new ground. The very passages from the judgment of Speight J which are quoted by Bisson J evince sharply the contrast in the views of these two High Court judges. Certainly MacDonald has not concluded for all time what does or does not amount to a medical misadventure. At its widest, the case can be cited as authority that d... if sickness or injury calls for medical... treatment and things "turn out badly" for the sufferer of such sickness or injury then the Act affords cover because of his or her misadventure. I believe the Act by using the word misadventure intended to * Member of the bars of British Columbia and New Zealand; Senior Lecturer in Law, University of Otago. a Unreported, High Court, Administrative Division, Hamilton, 25 July 1985, S 5/85. b (1985) 5 NZAR 146. c [1980] 2 NZLR 748. d At 9.

2 104 Otago Law Review (1985) Vol 6 No 1 equate and does equate the bad fortune in such a case with the bad fortune of the accident victim. More narrowly, however, MacDonald can be seen as simply standing for the more nebulous proposition that e... there are two possible outcomes of the treatment. It may cure the condition it is designed to treat but cause another medical problem or it may not cure the condition and give rise to adverse consequences. In those situations an injury has been suffered but it will not be covered by the Act as "personal injury by accident" unless the essential element of mischance or bad fortune or mishap brings it within the ambit of misadventure. Further guidance will be needed from the Court of Appeal and, more pertinently, from the daily rulings of the Corporation in individual cases. Assuming that the lead shown by Bisson J is followed, it is fair to say that more victims of the detrimental consequences of non-negligent medical treatment will be covered by the accident compensation scheme, even though the risk of such possible consequences was known by the experts prior to the treatment. This will inevitably limit the potential scope of informed consent litigation - which focuses on the lack of any warning to the patient of the risk. If the patient in such a case is now to be entitled to compensation under the scheme, there is a legislated bar to any common law claim. f The discussion of the doctrine of informed consent which follows should nevertheless remain relevant for those cases of adverse consequences of medical treatment which are still left outside the scheme, despite MacDonald. The future may also see a negligent failure by a doctor to disclose to a patient the risks of treatment as itself a form of "medical misadventure" encompassed by the scheme, which is a suggestion briefly alluded to in this article in the discussion of Re Priestly. g INTRODUCTION: MEDICAL MISADVENTURE AND THE DISEASE EXCLUSION For reasons which have been long since over-debated, I find myself a critic of some aspects of New Zealand's accident compensation scheme. In particular, I consider unjustifiable the present failure of the scheme to grant compensation to two interrelated groups of claimants - disease sufferers and victims of detrimental medical treatment. It is this bias under which I labour that has provided the impetus for this article which updates developments in and advocates the employment of two methods of securing compensation for patients who allege they have suffered as a result of medical treatment, yet are refused benefits under the scheme. These two methods are the negligence action invoking the doctrine of informed consent to medical treatment, and the related action for breach of the doctorpatient contract to achieve a particular result. Both of these causes of action involve claims against medical practitioners and owe their relevance to the restrictive interpretation which has been placed upon the meaning of the crucial concept of 'medical misadventure' appearing in the definition section e At 13. f S 27(1) of the Accident Compensation Act g [1984] NZAR 787.

3 Mahoney: Accident Compensation 105 of the Accident Compensation Act To provide the proper perspective, then, for the ensuing discussion of these two causes of action, a few introductory remarks will be made about the concept of 'medical misadventure' and the effect upon this concept of the anomalous exclusion of incapacity due to disease from the scope of the accident compensation scheme. As anyone with a passing knowledge of the accident compensation scheme is aware, 'medical misadventure' is one of the specifically denoted species of personal injury occurrences which amount to a 'personal injury by accident'. Equally well known is the truism that fitting one's personal injury within the rubric of a 'personal injury by accident' is the key to unlocking the coffers of the varied payments under the scheme. The restrictive interpretation which has been placed upon the phrase 'medical misadventure' has resulted in many deserving claimants being excluded from the aegis of the definition of 'personal injury by accident' and thereby from receipt of compensation under the Act. The corollary of this line of reasoning which excludes these cases from the purview of the Act is, however, that the path to redress through common law claims remains open. 2 As the subject of what has been interpreted to be or not to be a 'medical misadventure' has been already well explored elsewhere, 3 it would be mere duplication to go over old ground. A review of the decided cases and academic views make it clear that although it is said 4 that 'medical misadventure' encompasses more than mere medical negligence 5 there are really only two additional and fairly narrowly defined situations which are incorporated within this concept. These are, first, what has been described as 6 occurrence[s] of an external nature... [which] will generally be found to be normal examples of personal injury by accident in the general sense The complete phrase is 'medical, surgical, dental or first aid misadventure' but because of the focus of this article, it is referred to by the common shorthand of 'medical misadventure'. The phrase is to be found as one of the sub-definitions of 'Personal injury by accident' set out in s 2(1) of the Accident Compensation Act Accident Compensation Act s 27(1) has this effect because it only bars the common law action when there has been a 'personal injury by accident'. 3 Blair, Accident Compensation in New Zealand (2nd ed 1983) ch 7; Vennell, "Medical Negligence and the Effect of the New Zealand Accident Compensation (1981) Scheme" (1981) Vergleichende Rechtswissenschaft 228; McLeod, "Medical Malpractice in New Zealand" in Medical Malpractice (1980 ed) J L Taylor) ch 9; Sutcliff, "Precedent and Policy in Accident Compensation" (1977) 7 NZULR Accident Compensation Commission v Auckland Hospital Board [1980] 2 NZLR 748 at There may be occasions where no cover is granted under the Act even though there would be negligence at common law. The most important instance of this is the always tricky area of omissions - see Re Collier [1977] 1 NZAR 130 (commented on by Speight J in ACC v AucklandHospital Board, supra n 4 at 751). The Auckland District Law Society Continuing Legal Education Seminar on the Accident Compensation Act (1982) contained a valuable discussion of the omission issue. The issue continues to be a real one (see Re Carroll (1984) 4 NZAR 335). If a negligent omission was not found to be 'medical misadventure' then the subsequent common law action would be based on standard medical negligence principles. The aforementioned 1982 Continuing Legal Education Seminar pointed out that the claim made in Re 'E' infra n 6 - a failure to give treatment - was subsequently successful before a jury. 6 Re 'E' [1983] NZACR 649 at 656.

4 106 Otago Law Review (1985) Vol 6 No 1 which simply happen to occur in a medical setting. Examples are the accidental dropping of an injurious substance on to a patient during treatment, or the breaking of a surgical appliance during an operation which in turn causes injury to the patient. 7 The second and, for present purposes, more important form of 'medical misadventure' beyond medical negligence is injury caused by an occurrence so rare that, although perhaps not unknown, would not reasonably be considered by anyone in assessing the risks of undergoing the proposed treatment. 8 A quick mention of two rather stunning recent cases will illustrate the consequences of this approach to delimiting the concept of 'medical misadventure'. In Re Munday9 the claimant underwent a vasectomy, yet was later responsible for his wife conceiving a child. Although the idea may seem a little strange,10 a failed sterilization has been accepted to be a 'personal injury by accident' on other occasions,11 and it was on this basis that Mr Munday made his claim for compensation - presumably for costs associated with the birth of the child. No negligence could be pointed to in the method used by the doctor involved in the attempt to sterilize Mr Munday. The claimant seemed simply to be one of the unlucky few whose bodies undergo the process of 'recanalisation' after a vasectomy, causing a return to fertility. The interesting thing to note is that the evidence before Willis J was that the risk of this process occurring was 12 "about one percent". Despite the small size of this risk, it was still known to exist 13 and there was, therefore, no 'medical misadventure' here - no personal injury by accident and hence no cover under the Act. The consequences in Re Stopfortfl4 were more serious. The claimant had received a transplanted kidney which, after an initial hopeful period, began to show signs of being rejected. To combat this problem a strong.'!ntirejection drug was used, with results that were rightly described by Willis J as 15 "disastrous". These were epilepsy and coma with a subsequent loss of memory, partial deafness and some brain damage 16 "such as to limit 7 As hypothesized in the oft-cited Re 'E; supra n 6. Another example would be the faulty forceps in ACC v Auckland Hospital Board, supra n 4. 8 The stringent tests for establishing this form ofmedical misadventure were set out in Review Decision 741R00408 [1983] NZACR 640 at 642 as follows: (a) the risk that eventuated was a rare one; (b) such risk would not reasonably be taken into account when considering the wisdom of the treatment proposed; (c) the consequences were grave and totally disproportionate to the significance normally attached to the treatment; (d) such consequences were clearly beyond the extent of adverse consequences that would normally and reasonably be contemplated as included within the risk. 9 (1984) 4 NZAR See the dissent of Cooke J in L v M [1979] 2 NZLR See eg XYv The Accident Compensation Corporation (1984) 4 NZAR 219 (failed sterilization on a woman). 12 Ibid at Mr Munday had in fact been warned ofthe risk, negating any chance ofa claim in 'informed consent' - ibid at [1984] NZACR Ibid at Ibid at 784.

5 Mahoney: Accident Compensation " 107 his ordinary life, and to prevent him being able to work". The results were particularly surprising in this case because Mr Stopford had previously been treated with the same drug with no ill effects. While it is true that Mr Stopford was in a critical physical state prior to the administration of the anti-rejection drug, his claim for compensation was not based upon his kidney problems but rather on the extent to which the drug" caused additional damage, as was recognized by Willis Characterizing the circumstances surrounding the treatment of Mr Stopford as 18 "no medical mishap but less success [than had been hoped for] in achieving the desired result", Willis 1 upheld the initial denial of Mr Stopford's claim for compensation. The actual reasons given to support 'this denial are somewhat paradoxical because the judge, while basing his finding of no 'medical misadventure' on the premise that what occurred was simply one of the 19 "complications known to be associated with the treatment adopted in this particular case", concurrently noted that because of Mr Stopford's prior uneventful history with the drug employed,20 "there was no reason to suspect that the patient would react adversely to the administration of the same drug in 1976". Still, this was not enough to provide a basis for cover under the Act. As denials of the claims of both Mr Munday and Mr Stopford show, if a risk of treatment which eventuates and causes damage is to amount to a 'medical misadventure', it will have to be a rare risk indeed! The effect, then, of the present interpretation of the 'medical misadventure' style of 'personal injury by accident' is blatantly ironic. Except in the unusual case of equipment failure or a bizarre and novel reaction to treatment, the person who suffers a personal injury from medical treatment must prove fault in the nature of 'old style' medical negligence if he hope,s to receive compensation. If he cannot meet this requirement then he is denied assistance from a system that purports to have as its philosophical underpinning the abolition of the elusive search for fault. Although it is probably too late in the day to expect any alteration in the direction that has been taken in this restrictive and ironic interpretation of 'medical misadventure', it is worth pointing out that nothing in the Act requires the presently accepted interpretation. Speight 1, in the leading decision on the point,21 referred to the dictionary meaning of 'misadventure' and agreed that it meant "ill luck" or "bad fortune". It is hardly stretching the English language to describe what happened to Mr Munday or Mr Stopford as "ill luck" and "bad fortune" regardless of the fact that no negligence could be found. Is not what occurred in these cases just as much an 'accident' (itself commonly defined as 22 "an unlooked for mishap or an unintended event which is not expected or designed") as slipping on a banana peel when no one can be found at fault? The course of reasoning that has led to the present interpretation of 'medical misadventure' is an exercise in judicial overkill. It is said that 17 Ibid at Idem (emphasis added). 19 Idem. 20 Idem. 21 ACC v Auckland Hospital Board, supra n 4 at Per Lord MacNaghten in Fenton v Thorley & Co Ltd [1903] AC 443 at 448. See Blair, supra n 3 at 32 et seq.

6 108 Otago Law Review (1985) Vol 6 No 1 because all medical treatment carries with it an inherent risk of failure, it is no 'accident' or 'misadventure' when this known risk of failure manifests itself. 23 There are, however, two problems with this argument. First is the fact that most accidents that are regularly accepted as compensatable by the scheme arise out of activities or undertakings where an inherent risk of injury is present. Merely because there is a known chance that can be quantified in statistical terms that a daily automobile commuter will suffer a personal injury through a motor vehicle collision does not make the disaster, when it occurs, any less of an 'accident' or a 'misadventure'. That a known risk has the effect of turning an accident into some undefined 'something else' solely in the medical field is anomalous and unfair! Second of the problems that I see in the current approach to defining 'medical misadventure' is that it glosses over a crucial distinction. When medical treatment fails and the patient remains just as he was before the failure it is one thing, but when the result of the failed treatment leaves him worse off than he was before it is quite another. The fact some experts in medical science realized beforehand the possibility of negative results from the treatment hardly makes it easier for the victim to accept that he has not, in law, suffered an accident, or a 'medical misadventure'. In a compensation system that is willing to adopt the questionable position of excluding disease from its regime it may be consistent to refuse compensation to a patient who remains the same aft~r treatment as he was before, but it is adding a further injustice to refuse compensation to the patient who suffers injury precisely because ofthe treatment. Detrimental medical treatment is not part and parcel of disease. Really, though, the problem with 'medical misadventure' is just another aspect of this greatest anomaly of the scheme, to which I have just made reference - the exclusion of disease from compensation cover. Disease, after all, strikes down a far greater number of people than are incapacitated through accidents. 24 That it is logically indefensible that the scheme does not compensate sufferers of disease has been recognized by even the most ardent supporters of the New Zealand reform. 25 Who can argue with the words of Atiyah: notwithstanding all the efforts of the reformers to reject the moral basis of the fault system, it is unlikely to escape public notice in the future that some very undeserving accident victims will now often be entitled to earnings related compensation, at rates greatly in excess of those drawn by the innocent victims of disease or congenital disability. 23 Blair, supra n 3 ch 7 sets out the orthodox approach. 24 For the statistics, see Atiyah, Accidents, Compensation and the Law (3rd ed 1980) at 20 et seq. 25 Palmer, "What Happened to the Woodhouse Report?" [1981] NZLJ 561 at 568; Report of the Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand (1967) ('Woodhouse'), at 26 - when Mr Justice Woodhouse chaired the 1974 Australian Committee of Inquiry on Compensation and Rehabilitation (Australian Government Publishing Service, Canberra 1974) he recommended the inclusion of disease compensation into the proposed scheme; Ison, Accident Compensation (1980) at Atiyah, op cit supra n 24 at 622.

7 Mahoney: Accident Compensation 109 No one has yet been able to explain why the single fellow who is injured and off work because he carelessly fell down some stairs while drunk should receive compensation from the scheme when the cancer sufferer with a family to support is left to look to the minor assistance provided by the social welfare system. To say that the reasons are dictated solely by financial considerations, not logic, is hardly an explanation. If it is today's hard reality that there are simply not enough dollars to go around, it seems misguided to give the largest slice of the fiscal pie to the claimant who can show that he has suffered some sort of 'accident' and leave the paltry remains for the disease sufferer. The present priorities seem hopelessly misguided and the preference afforded the accident victim over the disease sufferer is worse than arbitrary. 27 This anomaly of the exclusion of disease from the scope of the accident compensation scheme 28 is a constant, brooding pressure on the interpretation of 'medical misadventure'. The existence of this exclusion has meant that disease must never be elevated to the status of a recognized and compensatable personal injury, merely because some non-negligent but ineffectual treatment has been applied to the disease. The result of this has been a prejudice against viewing failed medical treatment as a sufficient factor to trigger compensation in any case unless there is something far beyond the normal risks of treatment to which a finger can be pointed. Those who face the task of deciding whether or not a 'medical misadventure' exists in any given case are driven to the artificial and unfair present interpretation 29 "to avoid sliding down the slippery slope and compensating illness or death every time medical treatment fails". Hope may still exist, however, for those persons who have suffered by reason of failed medical treatment, yet cannot, or perhaps do not wish to bring their claim within the scope of 'medical misadventure'. The remainder of this article focuses on Some recent developments in the doctrine of informed consent to medical treatment and actions for breach of a medical contract to achieve a particular result, and suggests that these two causes of action should be considered as possible avenues for redress in the courts of New Zealand. 27 Thus Ison, supra n 25 at 29: Given that there is a limit to the total amount that any society will spend on compensation for disablement, why should the priorities in the distribution of that amount be determined by the cause of each disability rather than by the gravity of its consequences? For a good rundown of the costs involved in extending coverage to include disease related incapacity and the continuing debate in Parliament on the issue, see Rigby, Disease Sickness, Mental Illness & Heart Failure (Research Paper for Medico Legal LL.M., Law Faculty, Victoria University of Wellington, Wellington 1983) at 105 et seq. 28 There is a specific inclusion of 'employment disease' and 'industrial deafness' by ss 28 and 29 of the Act. 29 This quotation is from Palmer's testimony before the Pearson Commission - Report ofthe Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd 7054, 1978) - 'The Pearson Report' Vol I at 288.

8 110 Otago Law Review (1985) Vol 6 No 1 II. THE DOCTRINE OF INFORMED CONSENT TO MEDICAL TREATMENT From a New Zealand perspective, the most amazing thing about the doctrine of informed consent 30 is how seldom the issue seems to have arisen in this country. It might have been thought that gravity alone would have resulted in at least some of the northern hemisphere's enthusiasm for this branch of medical negligence spilling southward. Certainly informed consent is a growth industry in America, Canada, Britain and beyond, 31 assuming an ever growing share of the general medical malpractice spectrum. 32 The astonishing mass of commentary on this recently developed branch of negligence liability makes it presumptuous to even consider now setting out a dissertation on the existing law of informed consent as it has developed overseas. A skeletal summary has been relegated to footnote 30 'Informed consent' is the doctrine of civil liability developed in the United States (the term first appeared in Salgo v Leland Stanford Jr United Board of Trustees 317 P(2d) 170 at 181 (1957), which focuses on the failure ofa physician or surgeon to advise adequately his patient of the possible risks of proposed medical treatment, which failure robs the patient of the opportunity to make an informed decision whether or not to accept the treatment. As the name suggests, the doctrine arose as part of the law of assault and battery (see Schlondorff v Society of the New York Hospital (1914) 211 NYR 125 per Cardozo J) with the doctor liable to pay damages in assault unless the patient had given his true, informed consent. The more modern approach is to analyse the typical fact pattern in terms of negligence law, categorizing the doctor's failure to warn as a breach of his duty of care to his patient. Courts that reject the battery analysis seem to feel justified in believing that they have thereby rejected the whole of the doctrine of informed consent (eg Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] 2 WLR 778 (CA» but in passing on to adopt the negligence analysis they are simply choosing the more modern view of the doctrine. ' The greatest advantage of the battery analysis is that the patient need not founder ~(as, he so often does in negligence) on the issue of causation - he need not show that if he had been warned, he would not have gone ahead with the treatment (this was in fact the trickiest issue in Smith v AucklandHospital Board [1965] NZLR 191). Also, in battery, the problem or injury which actually occurs need not be within the undisclosed risk. What makes the doctrine so important and justifies the view (see Meisel, "The Expansion of Liability for Medical Accidents: From Negligence to Strict Liability By Way of Informed Consent" (1977) 56 Neb LR 51) that it is a major force leading toward strict liability in medical malpractice is that liability through informed consent only becomes at all relevant when the actual medical treatment was carried out without any negligence on the part of the doctor. Despite his careful technique, should a known risk of treatment eventuate, causing injury to the patient, the enquiry then shifts to the adequacy of the pre-treatment disclosure to the patient of that risk. If it is determined that, weighing all the factors (which were well dealt with in the judgment of Woodhouse J at trial in Smith v Auckland Hospital Board [1964] NZLR 241) the risk was one which ought to have been disclosed and, further, if the causation hurdle (supra) is overcome, then the doctor's liability will follow. 31 For a comparative study ofthe doctrine of informed consent throughout the western world, see Giesen, Medical Malpractice Law - A Comparative Law Study of Civil Responsibility Arising from Medical Care (1981) at 171 et seq. 32 Since its enunciation over two decades ago, the doctrine of informed consent has spawned untold controversy in thecourts, among legal scholars, and within the medical profession, and now constitutes one of the primary sources of antagonism between doctors and lawyers: Meisel, "The 'Exceptions' to the Informed Consent Doctrine: Striking a Balance Between Competency Values in Medical Decision-making" (1974) Wis LR 413 at 413. There are related heads of medical malpractice which may assume equal relevance in New Zealand, despite the Accident Compensation Scheme. For a review of these causes of

9 Mahoney: Accident Compensation 111 status 33 if only to emphasize that it has all been said before. Many trees have given up their lives to provide the paper necessary to produce the remarkable number of publications on the issue. 34 The American courts have mulled over every conceivable issue which might arise, and thep. some, and, as always, reached differing results. 35 The policy arguments for and against the existence of the liability of doctors on this basis have been thrashed out time and again in academic circles and reported cases. 36 The extent of the expansion of this form of medical malpractice has been such as to precipitate American legislation attempting to limit the potential liability of doctors, and codify the exact requirements as to what must be disclosed to a patient before treatment. 37 A Patient's Bill of Rights, incorporating a confirmation of the right to be informed of risks of proaction, including the doctor's duty to disclose the patient's adverse physical condition, available diagnostic procedures, test results and post treatment care see Le Blang and King, "Tort Liability for Nondisclosure - The Physician's Legal Obligation to Disclose Patient Illness and Injury" (1984) 89 Dick LR Supra n For a bibliography up to 1976 see Meisel, supra n 30 at 75 (n 66). For a supplementary bibliography to 1979 see Meisel, supra n 32 at 413 (n 5). The volume of commentary has by no means slackened since For an English viewpoint which contains a useful survey of developments and current issues see Robertson "Informed Consent to Medical Treatment" (1981) 97 LQR 102. For a recent Australian viewpoint see Bromberger "Patient Participation in Medical Decision-making: Are the Courts the Answer?" (1983) 6 U of NSW LJ 1. See also Skegg, Law, Ethics, and Medicine (1984) ch A fine annotation of the US cases is Frantz, "Modern Status of Views as to General Measure of Physician's Duty to Inform Patients of Risks of Proposed Treatment" 88 ALR (3rd) This work also sets out associated ALR annotations on related issues. The major issues are: Is the assault analysis still valid? By which standard ought the adequacy of disclosure be judged - accepted practice among doctors or the "individual need to know of the particular patient involved"? Is expert evidence required as to what risks should have been disclosed, and upon whom rests the burden of producing such evidence the patient who wishes to show that the doctor involved did not come up to the mark, or the defendant physician who wishes to show that he followed the established practice? Need the patient actually understand what he is being told by the doctor? What effect is the minority or incompetence of the patient? What duty is there on the physician to warn of newly discovered dangers resulting from treatment previously given and then thought to be safe? What is the test for causation - that a reasonable patient, properly informed, would have refused treatment, or is it enough that this particular plaintiff alone would have? 36 Thosein favour ofa liberal approach to the doctrine argue that it protects the individual's right to determine his own destiny; it promotes the patient's status as an autonomous human being; it guards against doctors assuming a role of omnipotence; it protects a patient's physical and psychic integrity and thus his privacy; it compensates affronts to the patient's dignity and the untoward consequences of medical care. Those opposed argue that the whole exercise of informing the patient wastes valuable time that could be better used in treating him; the patient is unable to understand the many variables which enter into a medical decision; patients would rather remain in blissful ignorance; the doctrine undermines the need for trust between the patient and his doctor; the whole exercise is illusory because the doctor frames his information in such a way that the choice is dictated in advance by the doctor. See Meisel, supra n For a review of the legislation see Meisel and Kabnick, "Informed Consent to Medical Treatment: An Analysis of Recent Legislation" (1980) 41 U of Pitt LR 407. The authors conclude, after a State by State review, But we can say with a high degree of confidence that, in the overwhelming majority of cases, the informed consent statutes are little more than window-dressing, creating the appearance of change without the substance (at 563).

10 112 Otago Law Review (1985) Vol 6 No 1 posed treatment, has been adopted by many United States hospitals. 38 A secondary industry has been spawned as an offshoot of the doctrine, being empirical research into what actually is disclosed by doctors to patients, what patients really wish to be told, and what difference, if any, it all makes anyway.39 That these remarkable developments should have created so little in the way of practical repercussions in New Zealand seems to give the lie to the concept of an ever shrinking world. The lack of New Zealand interest is even more curious when it is remembered that this country gave the Commonwealth Smith v Auckland Hospital Board 40 and the negligence analysis it employed, at a tjme ( ) when the doctrine of informed consent was just beginning to break away from the assault and battery justification in the United States to become engulfed in the protean concept of negligence Informed Consent in Canada The American developments have not gone unheeded elsewhere. In 1980 the Supreme Court of Canada, in Reibl v Hughes 42 affirmed the existence of the doctrine of informed consent as a part of Canadian law, upholding a damage award of $225,000 to a plaintiff who had suffered a massive stroke following surgery. The possibility of liability in battery was rejected, except in extreme cases where there is simply no consent at all to the treatment actually performed. 43 Laskin CJC, in delivering the judgment of the court, suggested that the term 'informed consent' should be discouraged where liability was claimed on the basis of negligence, as the phrase more properly refers to concepts of battery.44 Despite the deprecation by Laskin CJC of the use of the phrase, the problem of the possible confusion which its use might cause is evident in the judgments of other courts,45 and the modern negligence foundation of liability when medical risks have not be~n disclosed is still referred to by most commentators under the rubric of 'informed consent'. On one of the most controversial issues in this field, Reibl v Hughes decided that the standard of risk disclosure required will not be conclusively determined by expert evidence as to the common practice of disclosure 38 The American Hospital Association Patients' Bill of Rights, For the text of the Bill of Rights, see Appendix II to Miller v Kennedy 522 P (2d) 852 (1984); (affirmed 536 P (2d) 334). 39 For a recent review of the empirical studies, and a bibliography setting forth over 100 such studies, see Meisel and Roth, "Toward an Informed Discussion of Informed Consent: A Review and Critique of the Empirical Studies" (1983) 25 Ariz LR 265. For a more recent Canadian study see Robertson, "Informed Consent in Canada: An Empirical Study" (1984) 22 Osgoode HLJ Supra n 30. The decision, although employing a negligence analysis, cannot be seen as a 'pure' statement on the doctrine of informed consent because on the facts there had been a direct questioning by the patient of the risks involved. 41 The break from the battery analysis is thought to have commenced with Natanson v Kline 350 P (2d) 1093 (1960) - see Robertson, supra n 34 at (1981) 114 DLR (3d) One ofthe more colourful examples ofsuch a case, referred to by Laskin CJC, is Marshall v Curry [1933] 3 DLR 260 where consent was given to a hernia operation, but the doctor removed one of the patient's testicles. 44 Ibid at See eg Sidaway v Board ofgovernors ofthe Bethlem Royal Hospital supra n 30 (CA).

11 Mahoney: Accident Compensation 113 among the medical profession. 46 The standard will be established by the court, which will pay special,attention to the individual circumstances of the patient.47 On the other most crucial issue, causation, the Supreme Court of Canada chose an objective test rather than the subjective one sometimes adopted elsewhere. 48 In Canada the patient must perform the difficult task of convincing the court that a reasonable person in his position would haye refused the treatment when informed of the risks involved. It is not enough for the plaintiff to show that he (perhaps unreasonably, and perhaps only he) would have refused. 49 The characteristically well reasoned judgment of Laskin CJC in Reibl v Hughes has established the case as a landmark to which the more recent Commonwealth decisions on point have rightly felt some obligation to refer. 2 Informed Consent in England There certainly is something for everyone in the recent House of Lords look at informed consent in Sidaway v Board ofgovernors ofthe Bethlem Royal Hospital. 50 Everyone, that is, except the appellant, Mrs Sidaway. The four judgments delivered cover the full spectrum of arguments for andagainst adopting the doctrine of informed consent as part of English negligence law, and in view of the facts of the case it is perhaps surprising that the range of judicial views expressed did not result in at least some of their Lordships supporting Mrs Sidaway's claim. Mrs Sidaway sued after suffering a partial paralysis resulting from an unsuccessful operation to relieve pain. Perhaps the factor which motivated Mrs Sidaway to take her case before the House of Lords, despite consistently negative responses at trial and in the Court of Appeal,51 was the fact that her damages had been agreed at 67,500. The actual risks of the operation, performed on her spine, were possible damage to a nerve root in the area of the surgery and, more seriously, possible damage to the spinal cord. 46 Ibid at Ibid at 13 - In Mr Reibl's case the particular factor placing his case beyond that of the ordinary patient was his impending pension rights (ibid at 16). In Smith v Auckland Ifospital Board supra n 30 the opinions of the various judges of the Court of Appeal who discussed the issue differed: Barrowclough CJ suggests that expert evidence on common practice will not be conclusive (ibid at 198); Turner J takes the opposite approach (ibid at 205) as does Grisson J (ibid at 226). The special circumstance in Smith was an impending overseas trip. 48 Laskin CJC's judgment in Reibl v Hughes contains a useful look at the subjective test, under which the patient need only show that he would have refused the treatment, regardless of whether or not such a decision was a reasonable one. It is probable that, for the reasons set out by Laskin CJC in Reibl v Hughes, an objective test of causation would be adopted in England - see the suggestion to that effect of Hirst J in Hills v Potter [1984] 1 WLR 641 at 653. Robertson, supra n 34, concludes otherwise. Although Smith v Auckland Hospital Board supra n 30 did not really discuss the test for causation (although causation was the real issue in the case) if anything the Court of Appeal seems to have felt it was enough for Mr Smith to show that he, and not necessarily a reasonable person, would not have proceeded with the treatment. 49 Ibid at As Laskin CJC points out, once the tragedy has occurred and the patient is testifying in retrospect, it is difficult to expect any other testimony than that he would never have gone through with the treatment had he been told of the risks involved. 50 [1985] 2 WLR Supra n 30. The trial judgment was not reported.

12 114 Otago Law Review (1985) Vol 6 No 1 It was this latter risk, described as less than a one percent chance, which manifested itself and caused the paralysis. The case was one raising the sole issue of informed consent as no negligence in technique was alleged against the surgeon, Mr Falconer. The practical side of the litigation made the burden of proof on the plaintiff a crushing one. There was a combination of factors which led to real difficulties in determining precisely which risks had been disclosed to Mrs Sidaway prior to the operation. Mr Falconer had died before the trial, the medical records were inconclusive, and Skinner J, the trial judge, rejected Mrs Sidaway's testimony that she had received no warning at all about possible risks. The death of Mr Falconer before trial meant that he could not be cross examined, perhaps successfully, on that aspect of the case felt by all their Lordships to be crucial, namely whether or not he had made any assessment at all as to the individual characteristics of Mrs Sidaway which were relevant to a determination of which risks ought to have been disclosed to this particular patient, and, if such assessment had been made, how valid his conclusions were. 52 Mr Falconer's death also meant that Skinner J never had the opportunity to view him on the witness stand. If the surgeon had, when pressed as to his professional judgment, come across as pompous or evasive, the whole complexion of the case might have been altered with unfavourable repercussions for the defence. As matters stood, however, the defendants were able to present an uncontradicted (though, it is true, possibly uncontradictable) portrait of the deceased surgeon as 53 "experienced, competent, conscientious and considerate in his practice and in his attitude to his patients including Mrs Sidaway". This factor of Mr Falconer's death before trial was just another page in the chronicle of Mrs Sidaway's bad luck. To cap off the problems she faced in the lawsuit, her expert witness, Mr Uttley, would not testify that Mr Falconer, in his pre-surgery discussions with Mrs Sidaway, had acted otherwise than in accordance with 54 "a practice accepted as proper by a responsible body of competent neuro-surgeons". Two bright lights shone for Mrs Sidaway out of this apparent vacuum. First, Skinner J was prepared to conclude that Mr Falconer, while telling Mrs Sidaway of potential problems arising from possible damage to a nerve root in the area of the surgery, said nothing about the more serious risk that severe consequences could result if the spinal cord was damaged. 55 Second, the trial judge also found as a fact that had Mrs Sidaway been advised of this risk, she would not have agreed to. go through with the operation. This crucial fact meant that Mrs Sidaway had effectively cleared the often insurmountable causation hurdle. 56 Here, then, was a classic case for the full application of the doctrine of informed consent. Seventy-one year old Mrs Sidaway enters the hospital 52 Per Lord Scarman at 489 and 495; Lord Diplock at 496; Lord Bridge at 501; Lord Templeman at Per Lord Templeman at Per Lord Bridge at At This finding of fact is only made clear in the judgment of Donaldson MR in the Court of Appeal; supra n 30 at 782.

13 Mahoney: Accident Compensation 115 after more than a decade of pain. She undergoes a myelogram and is told that her neuro-surgeon, Mr Falconer, has 57 "decided to operate". She is not told that there is a known risk that paralysis may result from the procedure proposed, even if all proper care is taken by her surgeon. Had she known of this slight but serious risk, she would have refused the surgical option. Despite all of this, however, not one ofthe nine judges before whom Mrs Sidaway's claim was argued from the trial to the House of Lords, was prepared to allow her suit. If any of their Lordships were going to come down in Mrs Sidaway's favour, it was Lord Scarman. He was obviously sympathetic to her plight. 58 He referred to the broadest principles, declaring59 "ubi jus ubi remedium". He repeated his view, which had dramatically polarized their Lordships in McLoughlin v O'Brian, 60 that it was for the legislature, not the courts, to worry about the practical ramifications (here the spectre of a proliferation of 'defensive medicine') which might result from the recognition of a new cause of action. 61 Not subject to the nervous xenophobia of Dunn and Browne-Wilkinson LJJ of the Court of Appeal,62 he fully embraced the more liberal of the American approaches to the informed consent controversy, as set forth in Canterbury v Spence. 63 This leading decision similarly involved an optional operation to relieve pain where there was a risk of6 4 "about one percent" that paralysis might occur without negligence in technique. Lord Scarman's judgment illustrates how the basic American concept of the patient's right of self-determination can be ameliorated into a standard negligence analysis, without reliance on the further American battery foundation or the suggestion of a fiduciary relationship between a doctor and his patient. 65 For Lord Scarman the test to determine if a doctor had been careless in failing to adequately warn a patient of the risks of proposed treatment is not the standard of compliance with "a practice accepted... as proper by a responsible body of medical opinion...", enshrined as the appropriate general test in professional negligence litigation in the often approved jury direction of McNair J in Bolam v Friern Hospital Management Committee. 66 The standard of care in this particular aspect of professional medical practice is to be determined by law, with expert medical evidence providing only assistance to this determination. 67 Going further, Lord Scarman was prepared to agree that a case could be 57 Per Lord Scarman at At At [1983] 1 AC At Supra n F 2d 772 (1972). 64 Ibid at Lord Diplock at 499 felt that such a process was impossible. Browne-Wilkinson LJ in the Court of Appeal, supra n 30 at , felt that the battery concept and the idea of a fiduciary relationship 'indelibly coloured' the American formulation of the duty of care in risk disclosure. 66 [1957] 1 WLR 582 at 587 (emphasis added), as recently approved in Whitehouse v Jordan [1981] 1 WLR 246 and Maynard v West Midlands Regional Health Authority [1984] 1 WLR At

14 116 Otago Law Review (1985) Vol 6 No 1 imagined where a doctor would be negligent in failing to warn of 68 "even the general risks of surgery" - a warning which Lord Bridge and Lord Diplock, somewhat misleadingly,69 point out is not required by any Canadian or American authority on informed consent. Though all these general principles set forth by Lord Scarman could only support Mrs Sidaway's claim, his Lordship nonetheless dismissed her appeal. He determined that she could not pass even the 'prudent patient' test set forth in Canterbury v Spence 70 - she had not shown that a prudent patient in her same circumstances would have felt that the risk of paralysis from the less than one percent chance of the surgery damaging the spinal cord was 71 "significant" in deciding whether or not to have the operation. As, according to Canterbury v Spence, a doctor need only warn of risks which pass this test of materiality, Mrs Sidaway had not therefore managed to meet this fundamental requirement of her claim. But this is surely a surprising conclusion, particularly in view of the finding of fact, nowhere mentioned by Lord Scarman, that Mrs Sidaway would not have elected this surgery had she been told of this risk. In other words, she would have considered the risk as determinative, not merely material! Was there, then, something imprudent about Mrs Sidaway? Was her view of the materiality of this risk somehow unrealistic when compared to the view of a 'prudent patient'? There is certainly no suggestion of this on the evidence referred to in any of their Lordship's judgments. After his lengthy dissertation on the law of informed consent, Lord Scarman's discussion of why Mrs Sidaway failed to prove that the risk involved was material enough to require disclosure is disappointingly brief. It focuses on two factors only, both of which are suspect. First is the reference to the inconclusive nature of the testimony of the appellant's expert witness, Mr Uttley.72 Yet though, as Lord Scarman earlier points out,73 medical witnesses can be ofassistance in the determination ofthe 'scientific' aspects of the materiality of a risk - "the degree of likelihood of it occurring and the seriousness of the possible injury if it should occur" - these matters were not in doubt. Mr Uttley's testimony, inconclusive or not, was not relevant at all to the further and pivotal question of the prudent patient's reaction to the quantified risk of paralysis. As is pointed out later by Lord Bridge,74 Canterbury v Spence itself affirms,75 "Experts are unnecessary to a showing of the materiality of a risk of a patient's decision on treatment...". The second factor relied upon by Lord Scarman in deciding that the risk of paralysis faced by Mrs Sidaway was not material is that no evidence was available from Mr Falconer to enlighten the court as to any particular concerns he had which would militate against a disclosure of risks to Mrs Sidaway because of her individual characteristics and 68 At Infra at p Ibid at At Idem. 73 At At Ibid at 792.

15 Mahoney: Accident Compensation 117 circumstances. 76 But here too Lord Scarman is not being true to the propositions from Canterbury v Spence to which he earlier declared allegiance. 77 Canterbury v Spence placed squarely on the surgeon 78 the onus of proving the "therapeutic privilege" to withhold information from the patient which 79 "poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view". It seems wrong, then, for Lord Scarman once again effectively to penalize Mrs Sidaway for the lack of testimony from her deceased surgeon. If there were idiosyncrasies of Mrs Sidaway which could make it unwise to disclose to her the risk of paralysis, it should have been up to the defence to point them out. Lord Diplock's judgment forms a sharp contrast to that of Lord Scarman. All of their Lordships, including Lord Scarman, agree that the Bolam test, of compliance with a practice accepted as proper by a responsible body of medical opinion, is still the rule for at least claims alleging negligence in medical diagnosis and actual treatment. In continuing to allow the medical profession and not the courts to determine the standard of care in medical negligence litigation, their Lordships are once more affirming the privileged position held by doctors that has been denied to all other professional persons including, most recently, lawyers. 8o Lord Diplock is such a firm believer in the Bolam test that he decides that it is also the appropriate yardstick to measure if there has been a negligent failure to disclose risks. The rationale employed by his Lordship in supporting this position is far from convincing. He argues that the law must recognize and encourage innovation in medical treatment. No standard of care should be adopted which would 81 "confine the doctor to some long-established, well tried method of treatment only". The Bolam test, which exonerates a professional who adopts a modern practice as long as it can be shown to claim a sufficient number of adherents, thereby, according to Lord Diplock, supports innovation. While all of this is fair enough, his Lordship seems wilfully blind to the propostion that the argument against a rigid application of the Bolam test is motivated by the belief that it does not go far enough. The Bolam standard of care would protect a professional who followed the common practice even though it could be demonstrated that this practice was itself outdated and careless. The standard of care argued for by Lord Diplock is a two edged sword. There seems no convincing reason why the medical profession, just as any other professional body, should not be subject to the overriding ability of the law to say that a slavish adherence to a common practice is not on its own sufficient to exclude liability in negligence. Lord Diplock's isolation from his brother judges may well arise from what can only be termed his unrealistic view of just what is going on in professional negligence litigation. Whatever may be seen to be the proper 76 At At Ibid at At Edward Wong Finance Co Ltd v Johnson, Stokes & Master [1984] 2 WLR Ibid at 498.

16 & 118 Otago Law Review (1985) Vol 6 No 1 function of a court in this area, be it the implementation of social policy, the protection of the public, the spread of losses or whatever, most observers would agree that it transcends the puerile role to which his Lordship would restrict it - "the finder offact in cases depending upon the negligent exercise of professional skill and judgment".82 Though it is ludicrous to see the court as a modest finder of fact, leaving the subsequent judgment of negligence to the medical profession, this is where Lord Diplock would lead us. As it is, he leads himself into difficulties. He seizes upon the anomaly that not even the most liberal formulation of the doctrine of informed consent would require disclosure of the 'general' risks inherent in any surgery, such as the dangers of infection. He is, it is true, not alone among their Lordships in making much of the inconsistency in the requirement of disclosure of 'special' risks oftreatment, but not these 'general' risks. He rightly points out that the distinction is illogical and there will be inevitable difficulties in determining into which category a given risk should be slotted. 83 Two comments, however, can be made concerning the apparent anomaly discovered by Lord Diplock. First is the fact that it is not fair to say that no jurisdiction which fully recognizes the doctrine of informed consent concurrently requires disclosure of any of the 'general' risks of medical treatment. Canterbury v Spence itself, for instance, sets out only that there is no need to inform the patient of risks, "of which persons of average sophistication are aware".84 Though this immediately raises the problem of the patient of below average sophistication it is still a far cry from the proposition as put forward by Lord Diplock. More recent American authority has further restricted the scope of the 'general' risks of treatment which need not be discussed by the doctor, to " information the physician reasonably believes the patient already has ".85 This effectively does away with the distinction. The second comment is that even if Lord Diplock has truly discovered an anomaly this does not mean that the whole force of the doctrine of informed consent is flawed. If anomalies are not to be tolerated, an obvious response would be the simple suggestion that the doctrine should be expanded to require, in appropriate circumstances, disclosure of these 'general' risks of treatment. This suggestion posed no difficulties for Lord Scarman86 or Lord Templeman. 87 Lord Diplock's judgment contains an anomaly of its own, which is again shared by other 88 members of the bench in Sidaway. His Lordship is at pains to stress that Mrs Sidaway never asked about the existence of risks. If she had asked, a full disclosure would have been required; where she made no enquiries, the duty on the doctor to volunteer information is 82 At 500 (emphasis added). 83 See Lord Bridge at Ibid at 788 (emphasis added). 85 Harnish v Children~ HospitalMedCentre 439 NE (2d) 240 at 243 (1982) (emphasis added). 86 At Lord Bridge at 503; Lord Templeman at Such a viewpoint may be inevitable in a system weaned on Hedley Byrne [1964] AC 465 where liability for negligent statement was first recognized in a case involving a request for information.

17 Mahoney: Accident Compensation 119 greatly reduced and sometimes non-existent. 89 Yet why should this be? Why should the law grant a greater protection to the patient who is already aware enough to be motivated to ask a question, than to the ignorant, the inarticulate, or the timid? In justification of his view on this issue, Lord Diplock states, "the only effect that mention of risks can have... can lie in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo".90 But this is no justification at all. This is only to restate what the whole fuss over informed consent is all about! Lord Bridge's judgment, concurred with as it is by Lord Keith, has the most valid claim to being the majority opinion in the kaleidoscope of views to be found in Sidaway. It perhaps fittingly can be seen as a middle ground on informed consent, bridging the opposing ideas of Lord Scarman and Lord Diplock. A balanced account of the American position as set forth in Canterbury v Spence is given, and this position is ultimately rejected. 91 Likewise, however, the Bolam test is discarded as the sole criterion in determining the standard of care on the particular issue of risk disclosure. The reasoning of Laskin CJC in Reibl v Hughes appeals to Lord Bridge on this point. 92 The complete Canadian position is not adopted, however, as Lord Bridge prefers to see the decision of whether a failure to inform of a risk as "an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test"93 but with the court nevertheless retaining the liberty to find against a doctor, despite his adherence to a common professional practice of risk disclosure, where disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. Whether or not this difference in emphasis from the Canadian formulation will have any practical effect in most cases is doubtful. In any event, Lord Bridge felt that because the risk which caused the catastrophe to Mrs Sidaway was so slight, being some unspecified fraction less than a one percent chance, it was not the sort of risk requiring disclosure. His Lordship's 89 Ibid at Of the three reasons given by Lord Bridge for the rejection of the Canterbury v Spence solution to the informed consent controversy (at ) the third, that judges will have difficulty determining what "a reasonable person in the plaintifrs position" would consider a significant risk, is hardly convincing. This is the very sort of decision judges ar~ called upon to make in many negligence suits, when determining the reasonableness of the defendant's conduct, eg Bolton v Stone [1951] 1 All ER The care taken in the actual technique ofperforming medical treatment may be best assessed by the medical experts, but the issue of what information concerning risks should be given to a patient involves considerations which are not purely medical, and thus the court can have a controlling voice in the determination of the standard of care required here. 92 At Idem. 94 Indeed the only authority referred to at all by Lord Templeman in Reibl v Hughes, and this only as an illustration of the type of risk which would require a warning. Yet why the risk in Reibl v Hughes, a four percent chance of death and a ten per cent chance of stroke, was one necessitating a disclosure but the risk of paralysis facing Mrs Sidaway was not, is never really made clear by his Lordship.

18 120 Otago Law Review (1985) Vol 6 No 1 judgment is well reasoned and is really only open to attack on philosophical grounds, taking as it does a liberal yet carefully defined position which clearly recognises the doctor's duty to advise of risks. It is hard to get a handle on the last judgment, that of Lord Templeman. Unlike the rest of their Lordships, he does not even mention the Bolam case and does not seem too concerned over a precise 'test' by which the doctor's standard of care on the issue of risk disclosure may be assessed. 95 The reason why Lord Templeman rejects Mrs Sidaway's claim is at once unique and troublesome. He holds that once Mrs Sidaway was told, as Skinner J found, of the operation and the possibility of nerve Toot damage, "causing pain and/or weakness"96 this of itself would be enough to alert her to the fact that a serious operation was being contemplated and "that the possibility of damage... to the spinal cord was obvious".97 Any warning expressly referring specifically to the possibility of damage to the spinal cord was thus unnecessary as it would simply have "reinforced the obvious".98 It was acceptable for Mr Falconer to assume that Mrs Sidaway would have realized all of this and there could be no reason for him to suspect that any thus unnecessary warning about paralysis from spinal cord damage could cause her to refuse an operation to which she had otherwise given her consent. What a remarkable chain of reasoning this is. For Lord Templeman, Mrs Sidaway loses because she was just too dumb to read between the lines of what Mr Falconer told her! She actually got, in acceptably covert terms, all the warning she later argued was due to her. Needless to say, against such a rationale Mrs Sidaway had little hope of success. Lord Templeman felt Mr Falconer was not negligent in failing'to spell out to his patient what she, if she had been reasonable and paying attention, should already have known. Although it is easy to pick away at the judgments of their Lordships in Sidaway, the fact must not be lost sight of that this decision, even with its unclear ratio decidendi, heralds the recognition in English law of an enforceable duty upon doctors to disclose material risks of treatment to their patients. Subsequent cases will provide the fine tuning to this duty and clarify which standard of care formulation will be adopted, but there is no doubt that this House of Lords decision provides further fuel for the recognition in New Zealand of the doctrine of informed consent. 3 Informed Consent in Australia While there is no denying that informed consent has taken the northern hemisphere by storm, Australia, like its New Zealand neighbour, has remained remarkably reticent to hop on to this newly fashioned bandwagon. There are signs, however, that Australia may shortly become more active in this field. M D Kirby, Chairman of the Australian Law Reform Com- 95 On the controversy surrounding the applicability of the Bolam test, which so occupied his brother judges, Lord Templeman quickly concludes at 508 that the court, and not the medical profession, is the final arbiter of the standard of care in risk disclosure. 96 At 506 where Lord Templeman's reasoning on this point is set forth. 97 At Idem.

19 Mahoney: Accident Compensation 121 mission, has recently suggest~d that the factors which have dictated to date the relatively low number of general medical negligence claims in his country may be losing their former strength. 99 The result may be that the immediate future will witness an Australian 'explosion' in the field of medical malpractice litigation similar to that experienced in North America in the past few decades. l Mr Kirby recognizes that this development may be inevitable in Australia, 2... where, at least, in legal developments, things that have happened in America tend to happen in much the same way a decade or so on. The recent decision of the South Australian Supreme Court in F v R3 is the first occasion in which an Australian appellate court has had an opportunity to pronounce on the doctrine of informed consent. The judgments delivered give some indication that this particular branch of malpractice litigation is now in the process of establishing a firm toehold in the southern hemisphere. The plaintiff in F v R had undergone a sterilization operation, but subsequently became pregnant and gave birth to a child. The operation had not failed because of any carelessness in the surgeon's technique, but rather because of a 'recanalisation' of the fallopian tubes - an occurrence which is always a slight risk with this procedure. The trial judge accepted the plaintiffs testimony that had she been informed of the risk of failure, she would have insisted on a more radical procedure which would have ensured sterility.4 Damages of $10,000 were awarded at trial for the pain and inconvenience of the unwanted pregnancy and subsequent caesarean delivery of the unwanted child. 5 No appeal was taken from the ruling of Mohr J, the trial judge, that the facts did not constitute an assault on the plaintiff. 6 The Justices of Appeal, King CJ, Legoe J, and Bollen J, were unfettered by any Australian authority on the issue of informed consent, and 99 Kirby, "Negligence and the Physician" (1984) 14 Aust & NZ J of Med 867. The factors mentioned include increased community awareness leading to a more questioning attitude on the part of patients; an increased distancing in the doctor, patient relationship resulting in less reluctance to sue; increasingly sophisticated technology with more means to disclose errors, and,more knowledge that a competent physician should keep up with; increased pre-trial discovery rights leading to more means of obtaining the evidence to substantiate claims; the ever increasing number of lawyers who will see medical malpractice litigation as a fruitful source of litigation revenue. See discussion infra at p 137. Between 1969 and 1975 there was a 1000 percent increase in the number of medical negligence claims in America: see the Pearson Report supra p 109, n 29 at Vol I para As to some of the effects of this explosion on the costs of practising medicine etc see Shapiro, "The History of Medical Malpractice in the United States and its Effect upon Medical Practice" in The Influence oflitigation on Medical Practice (1977 ed Wood) at 6. 2 Ibid at (1983) 33 SASR Ibid at 190. This is at least the basis upon which the appeal was decided. A review of the trial judgment (infra n 5) does not bear this out. Mohr J at trial seems really to gloss over and misunderstand the causation issue (see infra n 5 at 439 and 441). 5 (1982) 29 SASR 437 at Supra n 3 at 190.

20 122 Otago Law Review (1985) Vol 6 No 1 could thus make a choice between the North American and the then current 7 English approaches. King CJ rightly acknowledged the contrast between the English decisions, which he felt placed more emphasis on s "the duty of the doctor to act in what he conceives to be the best interests of his patient", and the United States approach which more highly prizes the patient's9 "right to selfdetermination". The result of King CJ's carefully reasoned judgment appears to be an approval of the Canadian position, which can be viewed as a compromise between these two views. His Lordship adopted the judgment of Laskin CJC in Reibl v Hughes and made his position clear that the issue ofwhat is a reasonable disclosure ofrisks is for thecourt to decide, and not the expert medical witnesses who merely testify as to common professional practice. In words not designed to placate the medical profession, King CJ recognizes the possible conflict of interest in a doctor advising a patient of risks: 10 Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interest or convenience of members of the profession. The judgment of Bollen J contains a lengthy review of case authority on this point and winds up supporting the position reached by King CJ. The third set of reasons, those of Legoe J, although concurring in the result, are so confused as to make their dissection unprofitable. ll There are additional matters which make a reading of the judgment of King CJ a worthwhile exercise. His Honour deals well with the various and variable factors that enter into a correct decision whether or not to inform a patient of a potential risk. 12 King CJ, along with both of his brother judges, approves of Smith v Auckland Hospital Board 13 as authority for the proposition that "an express and apparently seriously intended request for information necessary to make an informed decision will ordinarily place the doctor under an obligation to give a truthful and careful answer". 14 Of particular interest is the distinction drawn by King CJ between the risk which, when it surfaces, leaves the patient worse off than before he accepted the treatment and the 'mere risk' that a proposed course of treatment will prove useless, leaving the patient in precisely the same state as he was before. I have already set out my view that this 7 The case was decided before Sidaway v Board ofgovernors ofthe Beth/em Roya/ Hospital had reached the Court of Appeal. 8 Ibid at Idem. 10 Ibid Legoe 1's judgment appears to be a misreading of the proper application of the principles of Anns v Merton London Borough Council [1978] AC Ibid at These factors are said to be: the nature of the matter to be disclosed; the nature of the treatment; the patient's desire for information; the patient; surrounding circumstances (emergency etc); and all are discussed intelligently by King CI 13 Supra p 121, n Ibid at 192; Legoe J at 199; Bollen J at 202.

21 Mahoney: Accident Compensation 123 distinction is a crucial one. IS Although it is one not often drawn, it is particularly apposite in the case of a failed sterilization where the patient remains fertile after the surgery, just as she was prior to the operation. It might be argued, however, that despite the patient's constant physical state, she has been placed by the surgery into an altered mental state that of a dangerous ignorance of her true ability to conceive an unwanted child. It may be that this was the sort of consideration I6 which prompted King CJ to declare that the duty to disclose medical risks I7 extends, not only to the disclosure of real risks of misfortune inherent in the treatment, but also any real risks that the treatment, especially if it involves major ~surgery, may prove ineffective. At the end of the day, the appeal in F v R was allowed, and the claim dismissed for much the same reasons that prompted the House of Lords to reach a similar result in Sidaway. On whatever standard of risk disclosure that might be chosen, the defendant gynaecologist was simply not negligent here in failing to describe minutely the risk of possible failure of the proposed tubal ligation. Despite this result, however, it can hardly be doubted that F v R marks the commencement of Australian excursions into the realm of informed consent that may well produce New Zealand side effects. 4 Informed Consent in New Zealand To the untutored, a blanket answer to a query into the reasons behind the lack of litigous New Zealand activity in the field of informed consent might_be a cursory reference to the abolition of personal injury litigation by the Accident Compensation Act. To observers who are more familiar with the interpretation of entitlement to compensation under the Act and the interplay of the doctrine of informed consent, such a stock response will, however, carry little weight. Precisely because of the restrictive interpretation that has been placed upon the 'medical misadventure' sub-heading of 'personal injury by accident', the doctrine of informed consent has assumed a forceful relevance as an avenue of compensation for personal injury victims excluded from the operation of the Act. I have already hinted at the outline of the argument supporting the recognition of a common law action based on the doctrine of informed consent, despite the existence of the scheme. I8 Briefly stated, it rests upon the fact that section 27 of the Act only bars litigation for damages when the personal injury involved amounts to a "personal injury by accident". Personal injury which results from a known risk of medical treatment which unfortunately manifests itself during the course of that treatment is not a 'personal injury by accident' because it is not a 'medical misadventure'. Litigation brought to compensate such an injury is not, therefore, barred by the Act. When this known risk of treatment which caused the injury to the patient was un- 15 I have mentioned that this distinction has not been drawn in New Zealand in the interpretation of 'medical misadventure' under the scheme - see supra at p There is, of course, the undoubted factor of having undergone the trauma of a useless operation. 17 Ibid at Supra at p 105.

22 124 Otago Law Review (1985) Vol 6 No 1 disclosed by the doctor, the opportunity in New Zealand"for a lawsuit based on informed consent is thus clear. This chain of reasoning is by no means original. Articles'setting forth the argument have been published before now. 19 Through at least one continuing legal education programme, interested practitioners have been advised of recent developments in this field. 20 Indeed, common law cases in New Zealand for damages on the basis of the doctrine of informed consent in the face of the accident compensation scheme are not unknown. 21 But despite what may be interpreted as the beginnings of a possible trend toward a New Zealand entry into the fray ofinformed consent, actual claims have been miniscule in number when compared with activity in the northern hemisphere. This lack of claims cannot be accounted for simply on the basis of the obviously small population base in this country. The recent.accident Compensation Appeal Authority decision, Re Priestly, 22 suggests that there remains a continuing ignorance among even those intimately involved in accident compensation practice of the present worldwide status of the doctrine of informed consent. Re Priestly dealt with another failed sterilization operation where no negligence in technique could be found. Prior to Ms Priestly undergoing the operation (and subsequently becoming pregnant) she had not been warned of the possibility of failure. She made a claim for compensation under the Act; based on 'medical misadventure'. The subsequent conception of the unwanted child was a mystery to the medical experts, only partly explained by the fact that the operation was carried out concurrently with an abortion, a circumstance that was shown to carry a higher than normal risk of a subsequent return to fertility. Despite the mystery, Willis DCl found no medical misadventure. Once again the risk was just not rare enough. Although this finding was not surprising in view of the authorities, Re Priestly is of interest for the summary dismissal by Willis DCl of Mrs Priestly's argument that compensation should be allowed under the Act, because she had not been advised of the risk of possible failure of the operation. The judge referred to Smith v AucklandHospital Board2 3 but stated that the case stood for the proposition that "... the doctor's duty is to fully inform the patient IF the question is asked". 24 While this may be correct as far as it goes, there is no doubt that Willis DCl relied on Smith for his further categorical statement that, "it seems clear that unless the patient asks the doctor specifically about the risks the doctor is under no obligation to inform the patient".25 Now this is simply a misreading of 19 Osborne, "Informed Consent to Medical Treatment and the Accident Compensation Act 1972" (1979) NZLJ 198; Vennell, supra pooo, n 3; Vennell, "Residual Liabilities under the New Zealand Accident Compensation Scheme" (1980) 3 Aus Ins Inst Jo Supra p 105, n On 31 January 1985 I spoke with C James, counsel for the New Zealand Medical Defense Union, who advised me that a few of such claims were presently in various stages of litigation. 22 [1984] NZACR Supra plio, n Ibid at Idem.

23 Mahoney: Accident Compensation 125 the Court of Appeal judgments in Smith! Except, arguably, for McGregor J,26 all the judges in Smith were at pains to stress that they were not laying down principles one way or the other relating to a duty to disclose risks, other than in a case when a specific request for information had been made. 27 Smith did not suggest that there was no duty to warn in the absence of a request. To treat Smith so cavalierly and to give such short shrift to the argument, however inelegantly raised, of informed consent, is either a display of ignorance of two decades of developments elsewhere in the common law world, or else a vain attempt to keep the camel's nose out of the tent. There is little doubt that once the issue of informed consent comes before a higher court in New Zealand, a more reasoned investigation will be taken into the desirability of adopting some of the competing possible directions in this field. What nonetheless remains intriguing about Re Priestly is the implicit suggestion that if informed consent was recognized as a basis for liability, it might simply be seen as a special form of 'medical misadventure', compensatable under the Act. The modern formulation of the doctrine is, after all, that the doctor is negligent in particular circumstances which call for a warning, in not fully advising his patient of the risks of treatment. As all other instances of medical negligence are caught by the present interpretation of 'medical misadventure',28 it may appear anomalous, when and if the doctrine of informed consent is recognized in New Zealand, that this sole head of medical negligence is to be litigated in the courts. 29 Nonetheless, as things stand at present, the conclusion seems inescapable that claims based on informed consent must be brought in the courts, without!eferenceto the Act. Such suits will have to accept whatever benefits or detriments are inherent in the system of civil litigation. As long as the law remains that personal injuries caused by risks of medical treatment which are known to exist by the medical profession do not amount to 'medical misadventure', then claims based on the non-disclosure of these risks to patients will have to be pressed outside the Act. It will be interesting to see, after a decade of relative inactivity, if the future brings to New Zealand an increase in instances of personal injury civil litigation through a heightened awareness and application of the doctrine of informed consent. One way or another, this country cannot remain immune to the force of developments currently underway elsewhere in this field. 26 McGregor J states: "I cannot accept, nor was it argued in the appeal, that a duty to explain or give information is in all cases created by the special relationship of doctor and patient" (at 213). Whether McGregor meant that such a duty would exist in some cases, depending on the circumstances, is open to argument. 27 Barrowclough CJ at 197; Turner J at 201; Hutchison J at 209; Grisson J at With the possible exception of negligent omissions such as a failure to diagnose - see supra p 105', n Some support for the view that cases of informed consent may find a place under the Act can be found in the decision of Blair J in Re Mrs McR (1979) 1 NZAR 567. In this appeal, which again involved a failed sterilization operation, 'medical misadventure' was found because of a problem with forceps used (this particular design of forceps was subsequently abandoned because of the number of similar problems which arose from their use). A second reason for the finding of 'medical misadventure', however, was the fact that the appellant testified that she "was led to believe that as regards the particular risk of subsequent pregnancy there was no risk" (at 573). This ground was not relied upon by Speight J on appeal: ACC v Auckland Hospital Board supra n 4.

24 126 Otago Law Review (1985) Vol 6 No 1 III BREACH OF THE MEDICAL CONTRACT TO ACHIEVE A PARTICULAR RESULT The courts will never be swamped by lawsuits based on breach of the doctor-patient contract to achieve a particular result. Even in America where, predictably, the issues arising in this form of medical malpractice litigation have been explored in some depth in the courtroom 30 and academic journals,31 the actual number of these claims is small when compared with related heads of liability such as informed consent. Simply to state the nature of this claim against medical practitioners is to state concurrently the reasons for its limited application. If it can be proven that the doctor expressly warranted as part of the doctor-patient contract that a proposed operation or other form of medical treatment would achieve a particular result, then a claim for damages can be launched if the warranted result is not realised. The biggest problem faced by the plaintiff patient, of course, is establishing the existence of the warranty of success. Doctors do not usually give such guarantees. All that will be implied into the agreement between the doctor and his patient is, as with any such contract for the performance of professional services, the requirement that the doctor exercise the skill of a competent professional. 32 It is, in fact, the breach of this implied term of reasonable competence which is the normal basis for claims of 'professional negligence'. Because of the continuing uncertainty surrounding the availability of a tort claim against a professional with whom the lay plaintiff had even informally contracted, 33 most claims alleging professional 'negligence' are in truth contractual claims, which argue that the professional's carelessness in performing the services amounts to a breach of the implied contractual duty of care. It is not this common type of breach of contract claim that is discussed in this article. The breach of contract with which I am here concerned is more 30 A good annotation of the US cases and issues is Shaw, "Recovery Against Physician on Basis of Breach of Contract to Achieve Particular Result or Cure" 43 ALR (3d) On the issues raised with respect to damages in such cases see the annotation, Landis, "Measure and Element of Damages in Actions Against Physician for Breach of Contract to Achieve Particular Result or Cure" 99 ALR (3d) Woodbury, "A Liberal View of the Contractual Liability of Physicians and Surgeons" (1976) 54 NCar LR 885; note in (1974) 4 Tenn LR 964; Birnbaum, "Express Contracts to Cure: The Nature of Contractual Malpractice" (1974) 50 Ind LJ 361; Maynard, "Establishing the Contractual Liability of Physicians" (1974) VII U of Cal Davis LR 84; Tierney, "Contractual Aspects of Malpractice" (1973) 19 Wayne LR 1457; for a Canadian look at a related problem, see Dickens, "Contractual Aspects of Human Medical Experimentation" (1975) 25 U of T LJ Jackson & Powell, Professional Negligence (1982) at In New Zealand this uncertainty stems from McLaren Maycroft & Co v Fletcher Development Co Ltd [1973] 2 NZLR 100 (CA) and the 'rule' in that case precluding tort liability in the face of an existing contract. For a good review of the issue see French, "The Contract/Tort Dilemma" (1982) 5 Otago LR 236. The position is reversed in the United States, where medical negligence claims are seen primarily as the concern of tort, with severe problems facing contractual claims based on a breach of the implied term to take reasonable care - see note in (1970) 6 Will LJ 275. It should not be thought that the 'rule' in McLaren Maycroft could be used to bar the tort claim of informed consent as outlined in this article - it seems that the doctor/ patient relationship has always been immune from the rule - see French op cit at 279 et seq.

25 Mahoney: Accident Compensation 127 refined, as the additional warranty of success will have to be express. The courts have shown an understandable reluctance to find such an express term. 34 Problems of proof are obvious because the doctor-patient contract is invariably oral. Often, what might have been seen as a guarantee of a particular result has been interpreted as merely "therapeutic reassurance". 35 Even when it can be shown that success was indeed guaranteed, subsidiary problems common to any breach of contract suit, such as the requirement of consideration, can cause problems for the disappointed patient.36 Nonetheless, the continued existence of these breach of contract claims is assured by reason of their distinct advantages over related ~forms of medical malpractice litigation. 37 Of prime importance is the fact that no professional negligence need be proven. The fact that the defendant doctor may have performed the medical procedure with all due care is no defence when it can be shown that, despite the excellence of the technique, a promised result was not reached. The expensive 'battle' of each side's expert witnesses need not be entered into. Also, the tricky problem of causation that bedevils other medical malpractice claims, including those based on informed consent,38 does not arise. If the result that was promised was not achieved, then damages are recoverable without the necessity of the plaintiff showing that he or she would not have agreed to the treatment without the promise of success. The Accident Compensation Act should be no bar to most of these contractual claims. Some, however, may be in jeopardy due to the existence of the Act. When the patient suffers by reason of medical negligence or som~ bizarre, unsuspected complication of treatment, he will be within the confines of the accident compensation scheme, having suffered a 'personal injury by accident' through this 'medical misadventure'. It is a little difficult to predict what approach a court would take to the case of a patient in such circumstances who was additionally able to prove a contractual promise by the doctor that the treatment involved would be 34 This reluctance. is shared by some American state legislatures, where laws have been introduced requiring medical contracts to be in writing to be enforced - see Woodbury, supra p 126, n 31 at 902 (n 102) - Woodbury and others have advocated a rule requiring corroboration of the express term to achieve a desired result (Idem). 35 See Shaw, supra p 126, n 30 at 1244 et seq. 36 See Shaw ibid at This issue of the lack of consideration may be what Turner J had in mind in Smith v AucklandHospital Board (CA) supra p 110, n 30 when he stated at 202: "There might indeed have been serious difficulty in founding it [the claim] in contract on the proved facts, in the absence of consideration." Yet it may be that he was only thinking of the problem of finding consideration when a hospital, as opposed to the individual treating doctor, was the defendant. Some American cases have required consideration additional to the fee for service to support the guarantee of success. An additional problem that may prove insurmountable, depending on the circumstances, is establishing a contractual relationship between the patient and the physician who gives the guarantee. The structuring ofmodern state health care services can makethis a definite issue to be examined in any individual case - see the comments of Lord Scarman in Sidaway at One of the major advantages elsewhere (beyond New Zealand) where a choice can sometimes be made on the facts between suing the doctor in negligence or breach of contract, is the often longer limitation period offered by a breach of contract claim. 38 At least when informed consent is based on negligence as opposed to battery - see supra plio, n 30.

26 128 Otago Law Review (1985) Vol 6 No 1 successful, or risk free. Two potential situations should be distinguished. First is the case where the patient's complaint is focused solely on the actual injury suffered, and the breach of contract claim, based upon a guarantee of success, is asserted merely as an alternative to a claim under the Act 39 - in the hope of receiving the greater amount of compensation offered by a traditional lawsuit. An elementary example of such a case might be that of the patient, guaranteed a complete return to normalcy by his doctor, who suffers a permanent impairment of function to his arm when the doctor is negligent in setting the patient's broken wrist. In the face of the entrenchment of the compensation scheme, the existence of the promise of success, even if construed to be contractually binding, it is unlikely to be seen as enough of a distinguishing factor to circumvent the ban imposed by the Act upon common law damage claims. Of greater concern is a second type of fact pattern in which a contractual claim may exist along with a claim under the Act. This is where the patient's true focus of complaint is the failure of treatment to come up to expectations induced by the doctor's warranty of success, even though some p erhaps minor 'personal injury by accident' was incidentally suffered in the course of the treatment. A good example of this situation is the 'classic' fact pattern of a breach of contract claim where the treatment involved was vanity motivated plastic surgery.40 When the results of the operation did not match those promised beforehand, it will be this contractual aspect of the doctor-patient relationship which will be at the centre of the claim. The fact that the plaintiff may also happen to have suffered a 'personal injury by accident' such as a few slight scars (or, as is later discussed,4o A the resulting anxiety) due to the surgeon's negligence is really quite incidental. Although it would seem unfair to reject a common law claim 'because of this additional fortuitous occurrence of 'medical misadventure', such a result could well be reached on a future interpretation of the Act, taking its place as just another unfairness in the scheme. Section 27 of the Act bans all claims for damages where a 'personal injury by accident' has been suffered and the suit for damages is brought, "arising directly or indirectly" out of that injury. The doctor's counsel will of course wish to end the common law claim in such a case and leave the patient to the pittance that would be awarded under the Act on the facts hypothesized. 41 He will argue that the whole of the patient's suit arises at least indirectly out of the surgeon's negligence in performing the operation and this undoubted 'medical misadventure' means that the case is the exclusive concern of the Accident Compensation Corporation. The result will be that the patient cannot in any way expect damages for the doctor's breach of 39 The Act does not spell out a prohibition against double recovery in such a case (ie suing at common law in contract and concurrently claiming under the Act) but a double recovery is inconceivable. Section 86 ofthe Act deals with a related problem and effectively negates double recovery in the circumstances to which it is directed (overseas claims etc). 40 Such as in facts similar to those found in LaFleur v Cornelis (1980) 63 APR 569 discussed infra. 41 A few scars on a patient's nose and the resulting anxiety (being the injuries that would be compensated under the scheme) will bring in very little 'non-pecuniary loss' compensation under ss 78 and 79 of the Act, and would only in the strangest circumstances give rise to any substantial loss of wages or other pecuniary loss.

27 Mahoney: Accident Compensation 129 contract, because there is no hope of recovery under the scheme for this aspect of the injury. Counsel for the patient, on the other hand, will argue that all aspects of the claim arise both directly and indirectly from the surgeon's failure to achieve the results that were warranted, and the prayer for damages is not concerned with the existence of the scarring at all, except as mere evidence of how the contract was broken. Perhaps some assistance for this argument can be garnered from the lead shown by the Court of A.ppeal in Donselaar v Donselaar 42 wherein it was affirmed that a claim for punitive damages does not arise even indirectly out of the personal injury suffered by an assault victim. The Donselaar decision was overtly policy based and equally valid arguments could be marshalled to support the patient's breach of contract action as hypothesized here, where there was an additional but incidental 'medical misadventure'. In support of the recognition of a patient's right to sue in such circumstances the submissions would stress control of the doctor-patient relationship, the desirability of affirming contractual expectations and the unfairness of the Act serving as a shield for doctors against breach of contract claims when it was never one of the purposes of the scheme to interfere with contractual relations. Despite these cases combining a breach of contract and a 'medical misadventure', there is no doubt that the action alleging a breach of the medical contract will become most relevant as an avenue of redress when the patient alleges damages even though there has been no 'medical misadventure' at all as that phrase is presently construed. Typically, this could arise when the problem suffered fell again within a known risk of treatment,43 or when no physical injury at all occurred, but the end product of the treatment did not come up to a promised standard. Sometimes such a contractual claim might be made along with one based on informed consent. Such a dual attack would be available when the patient was not warned of the risk of treatment which caused the eventual problem and, moreover, the doctor has in fact promised a complete cure. On other occasions a contractual claim may be the only option as, for example, when the patient cannot establish causation in a claim of informed consent or when the evidence shows that the doctor was not negligent in failing to disclose the particular risk of treatment which eventuated to cause the damage. 44 Although New Zealand courts may, if anything, be motivated against the recognition of breach of medical contract suits by the fact that they 42 [1982] 1 NZLR Thereby not amounting to a 'medical misadventure'. A good example of such facts is Review Decision 73/1017 where the claimant had undergone plastic surgery to remove excess tissue from her thighs but was left with unsightly scarring. The Review Officer held that this was a known risk of the treatment and thus not compensatable under the Act. He did advise the claimant, however, that the result of his decision was to leave the way open for her to sue the surgeon involved. Whether or not a common law breach of contract claim would have been successful against the surgeon is not clear from the facts set out in the Review Decision, because although the surgeon apparently advised the claimant that "he could improve the situation by operative treatment" it likewise appeared that the surgeon had warned the claimant before the surgery "of the consequences that would follow". 44 Because he complied with common medical practice in keeping silent about the risk (if that is the test adopted) or because even on a court imposed test of reasonableness of risk disclosure, he was not negligent (if that stricter test is chosen).

28 130 Otago Law Review (1985) Vol 6 No 1 have been successful in America, the further consideration that such claims have recently been allowed in both Canada and England may prove a more firm basis for supposing that they might receive a similar positive reception in this country. Both the Canadian example of LaFleur v Cornelis 45 and the English case of Thake v Maurice 46 are remarkable for their representative facts and the breadth of recovery allowed, and are worthy of notice. LaFleur v Cornelis, a 1980 decision of Barry J of the New Brunswick Court of Queen's Bench, involved a woman's claim against her plastic surgeon following a 'nose job'. The plaintiff was unhappy with the result of the operation which had left some scarring and a slight deformity by way ofunusually widened nostrils. The findings against the defendant were multifold. He was held liable in 47 'negligence' because ofthe faulty manner in which he conducted the surgery. I have already commented on the possibility that if such facts were to recur in New Zealand, a similar determination of negligence in technique (a 'medical misadventure') might serve to bar the additional contractual claim asserted that is based on the failure of the surgery to match promised results. 48 Beyond the finding of negligence in technique, the defendant was also found to have been careless in failing to inform the patient of the risks of the surgery. A complete case of informed consent was not made out, however, because of the causation problem - the plaintiff, despite her inevitable testimony to the contrary, 49 would have gone ahead with the operation even if aware of the risks. This causation factor did not stand in the way of the plaintiffs contractualclaim, and judgment was entered in her favour on this basis concurrently with that founded on the defendant's negligence in the performance of the surgery. Underscoring the power of the contractual claim, Barry J made it clear that its success in no way hinged on a finding of negligence, for, as he stated,50 "Negligence is not a factor in a straight breach of contract action". The warranty to achieve a particular result arose from fairly innocuous and, probably, fairly typical facts. After the plaintiff told the defendant what changes she wished made to her nose, the defendant drew a sketch of the proposed 'new' nose and agreed to bring about the desired metamorphosis for a fee of $600. Barry J appeared to have been most strongly motivated in making his decision that the defendant had given a contractual guarantee of success, by the evidence that the surgeon had said, at the time of the pre-operation discussion,51 "No problem. You 45 Supra p 128, n 40. See Berquist, "Legal Liability of Cosmetic Surgeons" (1983) 21 Alta LR [1984] 2 All ER Barry J, ibid at 572, makes it clear that he is basing his finding of negligence on the usual analysis employed in professional negligence cases - breach ofcontract through a negligent failure to live up to the implied duty of reasonable care, as explained supra at p Supra at p Ibid at Ibid at Idem. As is pointed out by Berquist, supra n 45 at 536 this is pretty weak evidence upon which to find a contract. What if the operation was properly performed but the patient was still 'not happy'? Would this have been a breach of warranty?

29 Mahoney: Accident Compensation 131 will be very happy," without any disclosure of risk. 52 Although this may be thought a surprising basis upon which to base a warranty of a particular result, it is obvious that the commercial factors unique to vanity motivated plastic surgery had a strong influence on the judge's conclusions. 53 The damage award was for the sum of $6000. Barry J made it clear that he saw this award as proper on both of the bases upon which he found against the defendant, negligence and breach of contract. 54 Despite a controversy among the authorities, Barry J was prepared to award contract damages to the plaintiff for her mental anxiety after the surgery, following Heywood v Weller 55 in which a similar award against a solicitor was upheld by the English Court of Appeal. In the past, when an award of non-pecuniary contractual damages was not thought possible, these medical breach of contract cases had been criticized as lacking much practical force. 56 For instance, in a case like LaFleur v Cornelis where no serious physical injury is suffered, the main component of damages claimed will be for non-pecuniary mental anxiety and distress. A common law claim would be a waste of time if no award could be made for this head of damages. While this may formerly have been a problem, it should no longer be a concern now that New Zealand courts have begun to follow the lead shown by Heywood v Weller and allow non-pecuniary damages for the mental consequences of a breach of contract. 57 One caveat, however, should be noted before a suit is launched claiming damages for the mental anxiety and upset caused by the breach ofa medical contract. Even where the breach does not involve a 'medical misadventure' at all, an argument might still be raised by the defence that the civil suit is barred by the Accident Compensation Act because a 'personal injury by accident' has been suffered. Section 2 ofthe Act defines 'personal injury by accident' as including "the mental consequences of... [an] accident". Certainly the damages sought in the type of lawsuit here hypothesized are for 'mental consequences' but in a breach of contract claim can they actually be argued to have arisen from an "accident"? Well, once it is accepted that being raped is an accident 57A there seems little standing in the way of the suggestion that being the victim of a breach of contract is also to suffer an 'accident". When anxiety and upset ('mental consequences') result from such an 'accident', a personal injury has therefore been suffered, and section 52 The relationship is close between these breach of contract claims and liability based on informedconsent. The possibi~ity ofa contract claim arises whenthedoctor, in discussing the proposed treatment, not only does not advise of risks, but goes further and positively warrants a particular result. 53 "... [the plastic surgeon] is more akin to a businessman", per Barry J ibid at 577. The special considerations relating to risk disclosure in cases of elective cosmetic surgery were alluded to in the successful Canadian informed consent case, White v 1Urner (1981) 120 DLR (3d) 269 at 288; affd (1984) 48 DLR (2d) 764 (CA). 54 Ibid at [1976] 1 All ER See Woodbury, supra p 126, n 31 for a discussion of this issue in the American setting. 57 Dawson, "General Damages in Contract for Non-Pecuniary Loss" (1983) 10 NZULR 232; Hazeldine v Burns Philp & Co [1983] Recent Law 265; cf Vivian v Coca Cola Export Corp [1984] 2 NZLR 289 where such a claim was rejected in the wrongful dismissal framework. 57A G v Auckland Hospital Bd [1976] 1 NZLR 638.

30 132 Otago Law Review (1985) Vol 6 No 1 27 of the Act bars any common law claim for these damages, leaving the plaintiff to seek the negligible amounts available under the Act. 578 Though this argument may seem far fetched, it has recently been accepted. 57c Only time will tell if this analysis of the potential of the 'mental consequences' component of the definition of 'personal injury by accident' will be universally accepted in the contractual framework. If it is, then contractual claims in medical cases will focus on quantifiable pecuniary losses, such as were present in Thake v Maurice. 58 Peter Pain J, the English Queen's Bench Justice who decided Thake v Maurice, recognized that it was a decision that 59 "surgeons will regard with alarm". Mr and 1\1rs Thake, the plaintiffs, were awarded judgment of 9677 against the defendant after a vasectomy which the defendant performed on Mr Thake failed, resulting in the birth of a sixth child into an already economically strained household. As no negligence was even alleged concerning the manner in which the defendant performed the operation, the plaintiffs' claim was framed 60 "boldly in contract". Although Peter Pain J went on to find additional contractual means of supporting the finding of liability made, the primary ground for his judgment was simply that the contract made was to render the male plaintiff sterile, and that contract was breached. Despite the defendant's belief that he was simply agreeing to perform a vasectomy, with no guarantee of success, the judge found that the evidence,61 when objectively viewed, supported the more stringent contract to sterilize irreversibly, and this promised result was not achieved. This primary ground, as well as the secondary grounds for the decision in Thake v Maurice, hinged upon the conclusion of Peter Pain J that the defendant, despite his testimony to the contrary, had never warned the plaintiffs of the possibility of failure of the vasectomy. Although this finding was crucial, his Lordship went to some lengths to reject the suggestion that he was in any way supporting the tort doctrine of informed consent. As Sidaway had not yet reached the House of Lords, Peter Pain J was faced only with the Court of Appeal judgments in that case which contain some apparently categorical, yet arguably misleading statements purporting to deny any existence in England of the doctrine. 62 With the arrival of the House of Lords judgments in Sidaway, this aspect of the judgment of Peter Pain J in Thake v Maurice is of historical interest only. His Lordship's further reasoning, however, illustrates how the pervasive force of the philosophical foundations of the doctrine of informed consent can simply not be gainsaid. The need for patients to be made aware of the ramifications of the medical decisions they are called upon to make largely influenced one of the secondary grounds for liability in Thake v Maurice beyond the primary analysis of breach of contract to achieve a 57B See supra p 128, n 41 on the small amount available under the scheme. 57C Gough v Gray unreported, High Court, Dunedin, 24 March 1984, 124/83, Vautier J. 58 Supra p 130, n Ibid at Idem. 61 The items of evidence most heavily relied upon were the finality with which the nature of sterility produced by a vasectomy was orally described to the plaintiffs by the defendant, and by the written consent form which they both signed (ibid at 519). 62 Supra plio, n 30.

31 Mahoney: Accident Compensation 133 particular result. Though eschewing any recognition of the tort doctrine of informed consent, Peter Pain J found that the defendant had breached a somewhat confusing contractual duty to inform the plaintiffs of the possible risk of failure of the vasectomy.63 By reason of this breach the plaintiffs had suffered damages through never suspecting the possibility of the subsequent pregnancy until it was too late to secure an abortion. Just how this duty to inform arose in contract is never made clear. 64 Will such a duty to disclose be implied into every medical treatment contract? If this newly fashioned contractual doctrine of informed consent is developed further in future cases, it will be interesting to see the treatment afforded the issues that have perplexed the concept in tort, such as the test for causation. A contractual perspective might arguably yield different results. 65 Thake v Maurice is als0 66 provocative on the issue of damages. Although the public policy argument raised by the defendant is really one peculiar to failed sterilization operations, such claims are by no means rare. 67 Faced with conflicting authority, Peter Pain J rejected the suggestion that public policy absolutely precluded the award of damages for the birth of an unwanted child. Recognizing that 68 "the birth of a healthy baby is not always a blessing" damages were awarded to the plaintiffs for the cost of maintaining their new child to age 17. Such an award of damages should be enough to spur the interest of New Zealand practitioners who might become involved in a case of this sort, where the only hope of recovery, there being no 'medical misadventure', would be through a breach of contract suit. Whether damages to the extent allowed in Thake v Maurice would be recoverable in common law litigation brought in this country is simply unclear. The recent High Court decision of XY v The Accident Compensation Corporation 69 concerned a claim for compensation under the Act following a failed sterilization that, because of special facts, had been determined to amount to a 'personal injury by accident'.7o Jeffries J decided that child rearing expenses beyond the actual costs of the delivery were not recoverable under what is now section 80(1) of the Act, the provision 63 Ibid at 521 et seq. 64 The only reason given by Peter Pain J is (idem) that the defendant admitted in his evidence that a warning as to the possible risk of failure would have been proper. This admission may well, as the judge recognized, obviate the need for any expert evidence to prove the common professional practice of giving such a warning, but the ramifications of the inclusion into the doctor-patient contract of a duty to inform of the risk of treatment might be thought to warrant more justification than this mere admission by the defendant. Does the fact that the warning was proper automatically mean that a duty to give such a warning becomes part of the surgeon's implied contractual duties? 65 In Sidaway, at 508, Lord Templeman suggests support for the recognition of a contractual duty to inform. 66 Peter Pain J also found the defendant liable on the further secondary contractual basis of a collateral warranty that the vasectomy would be final (ibid at ). Although his analysis is quite summary on this issue, a similar argument made in New Zealand would have to have regard to the Contractual Remedies Act For a valuable discussion on this issue, which was published as the present article was going to press, see O'Neill, "Damages and the Unwanted Child" (1985) 5 Auk ULR Idem. 69 (1984) 4 NZAR The problems giving rise to the failure of the operation are set out in L v M, supra p 106, n 10 as the cases involve the same parties.

32 134 Otago Law Review (1985) Vol 6 No 1 governing the award of this type of compensation. Although Jeffries J noted that the requirements of this section are more restrictive than the test for recovery at common law,71 there is no doubt that in part he supported the denial of child rearing expenses on the public policy basis that,72 This Court does not find that our supreme legislative body intended to stigmatise possibly the highest expression of love between human beings, that of a mother for her child, as a continuing injury to her by making compensation payable during dependency. Although this public policy argument relied upon by Jeffries J in XY v The Accident Compensation Corporation to preclude recovery of the child rearing expenses under section 80(1) of the Act would still be relevant if a common law breach contract suit was brought in New Zealand, the counter argument which led to recovery in Thake v Maurice has more recently been adopted by the English Court of Appeal in Emeh v Kensington and Chelsea and Westminster Health Authority. 73 This case again concerned the birth of a child to a female plaintiff after a failed sterilization. In this decision the Court of Appeal took the opportunity of approving the reasoning of Peter Pain J in Thake v Maurice on the public policy issue raised when a claim is made for the expenses of rearing an unwanted child. A parent may well love and care for a surprise child who appears after a failed sterilization, but maintenance of such child still creates foreseeable expenses. The strength of the present day support in England for allowing, in common law litigation, child rearing expenses in these cases of failed sterilization makes it difficult to predict the result of a similar common law claim in New Zealand, despite XY v The Accident Compensation Corporation. 74 Once the public policy argument was done away with in Emeh, the damage award was substantial. In addition to the mother's loss of future earnings and cost of the layette, damages for the expenses of maintaining the child up to trial and into the future were awarded. Further, the sum of 3000 was granted to compensate the mother's pain and suffering up to the trial with an additional 10,000 for loss of amenities in the future. 71 Ibid at 222, citing ACC v Nelson [1979] 2 NZLR Ibid at 223. Jeffries J goes on to call in aid the Good Samaritan! 73 [1984] 2 WLR 233. The Court of Appeal also had little difficulty in rejecting the bold argument that the plaintiff, in failing to obtain an abortion once she learned of the pregnancy, had failed to mitigate her damages, or had acted so unreasonably as to 'break the chain of causation'. 74 For American cases on the specific public policy issue raised, see Landis, supra p 126, n 30. It should be noted that $2,500 was awarded under the scheme to the mother in XY v ACC for non-economic losses (anxiety, pain and suffering) of the type that Peter Pain J, in Thake v Maurice (ibid at 527), felt were cancelled out by the joy of having a new healthy child. Peter Pain 1's hesitation was not shared by the Court of Appeal in Emeh v Kensington etc. An interesting damage award was made in Scuriaga v Powell (referred to in Emeh and Thake v Maurice) which involved a failed abortion and subsequent birth of a child. The Court of Appeal allowed, among other heads of contract damages, the sum of 1,500 for 'diminution of marriage prospects'. The Court of Appeal judgment is unreported, but is noted in Jackson and Powell, supra p 126, n 32 at 247. See too Robln~on, "Damages for Failed Abortion" (1981) 44 MLR 215.

33 Mahoney: Accident Compensation 135 From the New Zealand perspectiveit is useful once again to contrast the factual background of Emeh with that of Thake v Maurice. Should the facts of both cases recur here, the two situations might be treated quite differently because in Emeh, unlike Thake v Maurice, there was actual negligence in the performance of the sterilization operation. 75 It is true that the claim in Emeh appears to have been based upon a breach of contract,76 but not on the somewhat novel basis illustrated by Thake v Maurice of breach of a contract to achieve a particular result. In Emeh the breach arose from the negligence in performing the sterilization contract, and in all respects Emeh was treated as 'just another negligence case' by the Court of Appeal who were really only concerned with the arguments that the defendants raised to limit the damages. By framing the claim as one in breach of contract, the plaintiff in Emeh was simply following the usual approach, referred to earlier,77 of basing an allegation of professional negligence upon a breach of the contractual duty to take reasonable care. The actual medical negligence in Emeh means, once again, that if the facts were transposed to a New Zealand setting a claim could be brought under the Accident Compensation Act, and a New Zealand mother in such a case would be restricted to claiming under the Act because of the presence of the 'medical misadventure'. As stated previously,78 the existence of this 'medical misadventure' might well bar any contractual claim even if a guarantee of success had been given by the doctor. Certainly because of the limits on compensation under the scheme, as recently exposed in XY v The Accident Compensation Corporation, the victim of a failed sterilization operation performed negligently might feel hard done by if denied access to common law damages. It is admittedly anomalous that the New Zealand plaintiff in an Emeh situation would be restricted to a claim under the Act because her surgeon was negligent whereas the plaintiff in a New Zealand version of Thake v Maurice would be able to sue in breach of contract precisely because no medical negligence could be found! Strange it may be, yet this anomaly, engendered by the restrictive interpretation that has been given to 'medical misadventure', highlights the potential in New Zealand for a suit of damages arising out of breach of the medical contract to achieve a particular result. 79 IV CONCLUSION New Zealand seems to have remained peculiarly immune from the developments in medical malpractice litigation outlined here. Why this is 75 Ibid at Ibid at Supra at p Supra at p One practical consideration that would have to be researched in any individual case is financial backup in the form of liability insurance or co-operative medical defence union funds to meet any judgment against a doctor. This has been suggested to be a problem with this type of claim in America where doctor's liability insurance policies do not typically cover contracts entered into by the doctor to achieve a particular result. The indication I have received from C James, supra p 124, n 21 is that this is not necessarily a problem in New Zealand, but it is an issue that should be carefully considered in view of each potential medical defendant's individual circumstances.

34 136 Otago Law Review (1985) Vol 6 No 1 so must be the result of various factors, none of which need be permanent. In so far as the awareness of lawyers is concerned, while undoubtedly some practitioners are attuned to the continued possibility of civil damages claims against doctors, other members of the legal community probably remain in blissful ignorance. Hopefully only a small number of potential claimants have received legal advice that if their claim for compensation from the scheme has been refused because of the lack of a 'medical misadventure' there is no hope for redress through the courts. Awareness among lawyers as well as the public is obviously a cumulative phenomenon, and the very dearth of reported New Zealand common law cases of informed consent or breach of contract as discussed here inevitably serves to remove the whole issue from the daily consciousness of practitioners who are understandably concerned with matters of more immediate relevance. Such a situation, however, could be drastically reversed were one or two 'big cases' to hit the law reports. Probably the paucity of the number of these claims being asserted is due less to possible lawyers' ignorance than to a simple lack of public knowledge of the availability of these claims. There really can be little doubt that in New Zealand the pattern of medical risk disclosure and promises of cure mirrors that found in the other countries which have experienced the recent boom in medical malpractice litigation. If anything, it might be supposed that in this country where physicians have not been exposed to the pressure of extensive informed consent litigation, or the lessons dictated by the breach of contract cases, risk disclosure is likely to be more summary and promises to achieve success less rare than elsewhere: Empirical studies elsewhere, however, have come up with the somewhat surprising conclusion that the increasing litigation aimed at the pre-treatment consultation has not drastically altered the extent of disclosure of risks. 80 Thus it may be that what actually goes on between the doctor and patient in the New Zealand consulting room is much the same as elsewhere, despite the lack of extensive intrusion here by the pressures of litigation into the pre-treatment discussion process. But it would be absurd to believe that there are no claims being pressed in New Zealand because doctors are different here - that they fully disclose risks and never promise results. The very nature of the doctor-patient relationship ensures that there will inevitably be occasions when medical practitioners will be less than candid in discussing risks of treatment with their patients. Beyond the legitimate occasion of the emergency or the unnecessary creation of a healththreatening anxiety, there will still be times when the patient is expected to roll the dice without knowing the odds, that there is another game in informed consent as envisaged by the courts is a relatively rare phenomenon in the clinical settings that we have examined. Patients receive information; consent forms get signed. But rarely do doctors sit down with patients and provide them with thorough explanations of treatment options and then seek their consent to one or the other. Instead, information is often given to patients not to enable them to choose, but to encourage them to co-operate with doctors and to comply with decisions that have already been made, not by patients as law envisions, but by doctors. Meisel and Roth, supra p 112, n 39 at 334. For similar conclusions on the Australian experience see Bareham and Gibson, "The Information Process in Private Medical Consultations - A Preliminary Investigation" (1978) 12 Soc Sc & Med 409.

35 Mahoney: Accident Compensation 137 town, or even that he is gambling. When a doctor has made up his professional mind as to the preferred treatment he will, to one degree or another, tend to minimize the negative and accentuate the positive in his discussion with the patient, if any such discussion is held at all. When the economic pressure of time available for the consultation is added" into the equation, it is a certainty that facts will continue to rise which support the types of claims discussed in this article, when the previously minimized or negated risks manifest themselves. The very existence of the Accident Compensation Act must have a negative effect on the public's recognition of the possibility of these claims. A public that has been told for a decade that the drunk driver and the rapist are immune from civil suit can hardly be expected to learn by osmosis from a few legal journals the possibility of suing a doctor where medical treatment does not turn out as expected or promised. The scheme is a compounding factor of an existing state of affairs because it seems quite clear that even before its enactment, New Zealanders showed no great inkling to institute medical malpractice suits. 81 The undoubted effect of the mere presence of the accident compensation scheme will probably remain a constant force reducing the public's awareness of a continued right to sue. Still, the other forces which resulted in a reluctance on the part of patients to take their doctors to court even before the scheme was introduced may now be in the process of losing their power. I have already referred to the change noticed in other countries, where the medical malpractice litigation explosion has been felt, in the public's attitude toward asserting these claims. 82 Summarized, these developments have seen an increased distancing between the patient and the doctor as the more regimented relationship of patient to clinic during regular working hours and patient to emergency department after hours replaces the older 'family doctor' approach to practice. As consumer awareness grows in all aspects of daily life, better informed and educated patients are beginning to question more and explore options, forcing the doctor down from his professional pedestal. The undeniable advances in technology have raised expectations, replacing a stoical acceptance of the failure of treatment. There are simply more ways now for a doctor to slip up and more known risks of increasingly intricate treatment. At the same time doctors, themselves engaging in a little of their 81 Franklin, "Personal Injury Accidents in New Zealand and the United States: Sonle Striking Similarities" (1975) 27 Stan LR 653 at 670. In 1970 only 60 "arguably serious" nledical malpractice cases were made and the total payout from physicians malpractice insurance carriers was less than $150,000, with payments made to compensate hospital liability dainls being no greater than $35, Supra p 121, n 99; see too Shapiro, supra p 121. n 1 and Hart. "Effect of Litigation on the Practice of Medicine in the USA - A Lawyer's View" in the satne volunle. The Pearson Report, supra p 109, n 29 Vol I at para 1320 also restates SOtne of the reasons for this explosion of medical malpractice claims in the US. For an outline of some of the current problems arising from the Anlerican medical malpractice litigation experience see More and O'Connell, "Foreclosing Medical Malpractice Clainls by Prolnpt Tender of Economic Loss" (1984) 44 Lou LR The solution advanced by the authors is retlected in the Alternative Medical Liability Act presently being debated in the United States. It enlbodies a no fault concept with reitnbursenlent for ecollolllic loss, but no COtnpensation for non-econonlic losses. See the report in (1985) 71 ABA Jo 37.