Hospital Negligence Claimed

Press, Volume CIII, Issue 30481, 1 July 1964, Page 3

Hospital Negligence Claimed

(N.Z Press Association)

WELLINGTON, June 30. The question a doctor must ask himself when telling a patient about possible risks involved in an operation is “am I helping the patient, or am I merely frightening him,” counsel for the Auckland Hospital Board submitted today in the Court of Appeal.

Mr (>. L. McLeod was opening the case for the board in the appeal by John William Smith, engineer, of Auckland, against a judgment of Mr Justice Woodhouse in the Auckland Supreme Court on November 8, 1963. In the Supreme Court Smith claimed £5OOO damages from the board alleging negligence on the part of the medical staff at Green Lane Hospital, Auckland. Smith had been admitted to the hospital

for investigation of a suspected medical condition. After the examination and a subsequent operation a blockage occurred in the arteries of his right leg and it had to be amputated five inches below the knee joint. Smith claimed the doctor who informed him the operation was to take . place was duty bound to tell him the hazards involved.

A Supreme Court jury awarded Smith £3OOO general damages and £2651 special damages. The board then applied for judgment against Smith and this was allowed. Mr J. S. Henry, for Smith, today submitted that a portion of the judgment in the Supreme Court was incorrect in that the question Smith asked the senior thoracic surgeon, Mr Windsor, “is there any risk attached to this?” was a request to disclose all known appreciable risks in an aortogram. Mr Henry said that if proper medical practice required a medical disclosure then the failure to come up to that standard was negligent. Counsel asked where was the evi-

dence that Windsor’s answer was a proper one in the circumstances.

Opening the board’s case, Mr McLeod submitted that what was to be argued in the case ■> appeared to have been reserved to the question whether Windsor was negligent in not giving an answer to the question, “is there a risk attached to this?”

Firstly, counsel said, did Windsor owe a duty of care? If the answer to that was yes, then what was the extent of the duty? Then did the extent of the duty amount to a necessity to give advice?

Thirdly he asked in what way was the position influenced by the doctrine of forseeability. Considering Smith’s viewpoint, Mr McLeod put him-

self in the place of the doctor and asked: “If I say more as the doctor, do I lead to the state where I do damage, rather than help the patient?”

The hearing will continue tomorrow.