Lewis v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 97 197 HELD AT TAURANGA IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ERROL JOHN LEWIS Appellant (Appeal No. DCA 252/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of April 1997 APPEARANCES Mr G L Wilkin for appellant Mr M G Colson for respondent Mr A H Waalkens for Dr E Lawton DECISION OF JUDGE D A ONGLEY This appeal concerns a question of medical misadventure. The two possible grounds for the claim to succeed include either medical mishap in the nature of a rare and severe consequence of cataract surgery, or otherwise medical error by failure to obtain informed consent in circumstances where the possibility of failure resulting in deterioration of sight was in the region of 2%. During 1989, the appellant attended Mr E B Lawton of Hamilton, ophthalmic surgeon, about deterioration of vision in his left eye. The appellant was highly myopic and a cataract was diagnosed. The appellant said that in the first consultation -2- in March 1989 Dr Lawton was hopeful that the cataract would not develop and the appellant might carry it with him to the grave. However, when he saw Dr Lawton again on 17 September 1990 the eye had deteriorated and the question of an operation was raised. The appellant says that Dr Lawton did not mention any risks of surgery but that he recommended an operation. The appellant was then aged 58 and was employed in carrying out a postal delivery contract. It appears from the material that he placed before the Corporation and the Review Officer, confirmed by his oral evidence on the hearing of the appeal, that his main concern was to carry on working until aged 65, and for that purpose to protect his eye-sight. He did not want to undergo surgery if that was not necessary. The appellant saw Mr Lawton again on 27 November 1990. Mr Lawton told him that his left eye needed an operation because of deterioration of the cataract, and gave him the option of immediate surgery privately, or of going on the Public Hospital waiting list. The appellant was in no hurry to have an operation. He telephoned Mr Lawton's nurse on 10 December 1990 instructing her to arrange for him to be put on the Waikato Hospital waiting list, thinking that the likely delay would be about two years. While on the waiting list he sought a second opinion from Dr Paul who told the appellant that he could get some more use out of the left eye, and he gave him a new prescription. The appellant experienced a definite improvement with the new prescription. Unexpectedly, the appellant received notice in August 1991 requiring an interview in preparation for cataract extraction at Waikato Hospital. On 5 November 1991 he saw Dr McGeorge at the hospital eye clinic. The operation that was envisaged was an endocapsular lens extraction and insertion of an intraocular lens. The appellant had no knowledge of the surgical procedures but understood that the operation would involve lens extraction and the insertion of a plastic lens. In his evidence before the Review Officer he said: "... the failure rate of less than 2%, which I'd spoke about for the interview with Doctor McGeorge on the 5 November 1991, was a general query on my part. I said to Doctor McGeorge, what is the failure rate on this. Not specifics because I didn't know what the hell I was talking about, all I wanted to know was did your eye fall out, would the bit of plastic fall our, or generalities but there was never any mention of myopia. The main thrust from my point of view through my GP was diabetes. This is what I thought. And nobody, along the whole range of this thing, said myopia." In the brief of evidence which the appellant confirmed on the hearing of the appeal he said: "On 5 November 1991 I had an interview with Dr McGeorge at the hospital eye clinic. Dr McGeorge stated that they couldn't make my eye 100% but could improve it to 50% as otherwise it would make an imbalance with my right eye. But he stated that when they did my right eye, they would insert 100% there and balance it with glasses. Dr McGeorge told me that they would insert a plastic lens in my eye. I asked him how many times they could do that and he said only once. . 3 - I asked him what the rejection rate was and he said that this was less than 2%. At the time there was a lot of publicity about Billy T James rejection of his new heart and that was why this was in my mind. He did not at any time mention the fact that my myopia made the operation more risky for me. At no time was the danger of retinal detachment and what this might mean mentioned. At no time was I given any idea that there was any possibility that I could suffer retinal detachment with its possible complications leading to losing the sight in my eye. The 2% mentioned was in relation to the operation not being successful and the implant being rejected and the operation not improving my sight, not to the fact that it could leave me worse off than I was before." The significance of the figure of 2% is connected with the fact that the appellant, because of his high myopia, had a higher risk than the general population of an adverse consequence of retinal detachment following cataract surgery. On this appeal there is no dispute that the risk of that adverse consequence in the general population is 1%. Ordinarily, the occurrence of retinal detachment following cataract surgery would constitute medical mishap because it is a rare and severe adverse consequence of the treatment. Section 5 of the Act is set out for completeness: "5. Definition of medical misadventure" - (1) For the purposes of this Act, - "Medical error" means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results: "Medical misadventure" means personal injury resulting from medical error or medical mishap: "Medical mishap" means an adverse consequence of treatment by, or at the direction of, a registered health professional, properly given, if--- (a) The likelihood of the adverse consequence of the treatment occurring is rare; and (b) The adverse consequence of the treatment is severe. (2) For the purposes of the definition of the term "medical mishap", the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given. (3) Where the likelihood that an injury would occur is in the ordinary course rare, but is not rare having regard to the circumstances of the particular person, it shall not be medical mishap if the greater risk to the particular person injured--- (a) Was known to that person; or (b) In the case of a person who does not have legal capacity, was known to that person's parent, legal guardian, or welfare guardian, as the case may be, - prior to the treatment. . .. - 4 - (6) A failure to obtain informed consent to treatment from the person on whom the treatment is performed or that person's parent, legal guardian, or welfare guardian, as the case may be, is medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent." A primary question arising on this appeal is whether the appellant was advised of the greater risk referred to in s 5(3), namely the risk of retinal detachment to a person with his high myopia would exceed 1%. The evidence of advice of the greater risk Mr Lawton and Dr McGeorge were notified of the appeal and given an opportunity to be heard. Mr Lawton was represented on the appeal and gave oral evidence at the hearing of the appeal. Dr McGeorge had left New Zealand and taken up residence in the United Kingdom. He did not respond to a notice giving him the opportunity to be heard, and consequently there was no evidence other than that from the appellant about the information given to the appellant by Dr McGeorge. Mr Lawton said that he could not precisely recall what he told the appellant on 27 November 1990 but that he could be confident that he would discussed the benefits and complications relating to the proposed surgery. He would have been unlikely to have gone into great detail at that stage because surgery was not planned in the near future, but he would have outlined to the appellant that there could be no certainty that the operation would be successful and that there were risks associated with the surgery. He said that if Mr Lewis had enquired further about those risks he would certainly have outlined what they were and he would have included a reference to the possibility of a detached retina, which he was aware of as a risk of that type of surgery. He said that he would not necessarily give detailed advice at that stage because he was not obtaining consent to surgery. He was aware that patients generally do not have a precise recall of advice given to them some time before surgery and it is more appropriate to obtain informed consent on the basis of advice given closer to the time of surgery. Furthermore, the patient's circumstances may change in the intervening period. Mr Lawton said that he would be very surprised if Dr McGeorge did not make reference to the possibility of retinal detachment as a possible risk of the surgery because Dr McGeorge would certainly have been aware of the risk. Mr Lawton knew that Dr McGeorge had experience of a year in ophthalmic surgery in Auckland and that he had been senior registrar in ophthalmology in Waikato Hospital for eleven months. Mr Lawton understood that Dr McGeorge would have seen the appellant in a pre-admission clinic where he would have had time for a further examination and discussion of aspects relevant to his informed consent to surgery. Mr Lawton had seen Dr McGeorge interact with patients although had not observed him in pre- admission clinic; he regarded Dr McGeorge as thorough and regarded him highly. That is the only evidence of the likelihood of Dr McGeorge having given appropriate information to obtain the appellant's informed consent. - 5. The appellant's perception of the nature of the risk of the operation was connected with what he called rejection of the plastic insert. He denied having been given any advice about the possibility of retinal detachment. In a letter of 18 October 1994 written by the appellant to the Corporation's Medical Misadventure Advisory Committee, he said that he asked Dr McGeorge about the "failure rate" and that the doctor replied that it was less than 2%. On the hearing of the appeal he was cross- examined about his understanding of what that meant. He made no distinction between the ideas of rejection or failure but he acknowledged that he realised that rejection would have implied loss of the lens and he would have to assume deterioration of sight. In reality, the appellant must have understood that deterioration of his sight was a possibility to be considered in relation to surgery. He made it clear in his evidence, and there is no reason to reject what he said, that his purpose in discussing the operation with Mr Lawton, and in subsequently seeing Dr Paul, was to avoid surgery if at all possible. It was put to him in cross-examination that his reason for doing so stemmed from his knowledge that surgery involved a risk of adverse consequence of loss of sight. He said that he did not take that into account but that his real concern was fundamentally that he did not like hospitals, did not want surgical intervention at all, and did not have a belief that a surgical cure was possible. I accept that there is no strong inference from his inquiries with Mr Lawton and Dr Paul, that he was understanding and confronting the risk of adverse consequences to his sight. It is likely that he was concerned only with the general problems that surgery presented to him and he wanted to avoid it or put it off as long as he could. He testified that he said to Dr Lawton "I don't want to go blind", and that Dr Lawton replied to him that he could show him blind people but that he couldn't see it happening in the appellant's case. This was new evidence that the appellant had not put before the Medical Misadventure Tribunal or the Review Officer. In explanation of that, the appellant said that he did not think it relevant. Clearly, it is relevant to the extent that, if it is believed, Mr Lawton positively minimised the risks in giving the appellant some kind of assurance, being inconsistent with the likelihood of Mr Lawton actually informing him of the risk. Mr Lawton knew that the appellant was highly myopic and knew that there was an increased risk of which the appellant should be advised. Mr Lawton commented in his evidence that the question of a patient's tendency to remember the benefits rather than the risks has been the subject of medical research. Mr Lawton said that he would have explained to the appellant in general terms that there are a percentage of patients who did not do well but that some people's vision could be worse or completely lost, but the incidence of that was small. Mr Lawton was not seeking informed consent but giving the appellant information to enable him to make a decision whether to go on the waiting list. It is common ground that the information given by Mr Lawton was not intended to be sufficient for informed consent. Mr Lawton's assessment of the information required in a pre-operative clinic was to explain (1) that the operation was a common one, (2) to explain the nature of the vision that could be expected after successful surgery, (3) to explain that some operations do not go according to plan and that perhaps 4% do not achieve improvement, and (4) that some patients have deterioration of vision after the . 6- operation. That is the kind of advice that Dr McGeorge would have needed to give, without minimising the fact that some patients experienced a loss of vision and making it clear that that was a small but significant risk for the appellant, without necessarily describing it in percentage terms unless asked to do so. It appears likely that Mr Lawton did not advise the appellant of a greater risk in terms of s 5(3). Mr Lawton's evidence was that he would not have gone into great detail but would have discussed the benefits and complications of surgery. It does not follow that the advice would have complied with the requirements of s 5(3). It should be clearly stated that there is no allegation of medical negligence in respect of Mr Lawton's advice. It is not said that it was then incumbent upon him to take care to inform the appellant of the risks of surgery. Mr Lawton's oral evidence was that he would have said in general terms that there are a percentage of patients who do not do well in cataract surgery, and that some people can be worse off or suffer a complete loss of sight but that the incidence is small. It is not suggested that he should have given any other advice at that stage. Mr Lawton said that when placing a patient on the waiting list for Public Hospital surgery he would rely on the ophthalmic registrar to give the necessary pre-operative advice. The ophthalmic registrar should be well aware of complications and should be able to discuss them with the patient. At that time there was no protocol for pre-operative advice but the obligation of the registrar was well understood. It is necessary to turn to the evidence of advice given in due course by Dr McGeorge. There is no evidence that Dr McGeorge would have been likely to tell the appellant that he had a higher risk of failure than the general population. That would have involved advising the appellant that the risk of retinal detachment was about 1% for the general population but was higher than 1%, perhaps more than 2%, for highly myopic persons such as the appellant. The appellant has given evidence that myopia was not mentioned. He understood that there was some connection with diabetes, information that he had picked up from his general practitioner. The only clear evidence is that of the appellant himself that Dr McGeorge referred to a failure rate of less than 2%, which by implication, although not of necessity, is more than 1%. Dr Lawton's clear evidence is that the only material risk in question was retinal detachment and that, taking account of Dr McGeorge's knowledge and thoroughness, he would almost certainly have informed the appellant that there was a risk of retinal detachment in the region of 2%. The Review Officer referred to the evidence at length and concluded her decision as follows: "This has been a very difficult case for me to consider as it is a matter of balancing a registered health specialist's standard protocol against the evidence of a patient under his care. It is always a very difficult issue to establish one person's word against the other, particularly where there is a large time factor involved and two responsible people who are saying different things to each other. However I must look at the fact that Dr McGeorge did talk to Mr Lewis about a 2% possibility of failure. The 2% seems to have stuck in Mr Lewis' mind and it is unclear whether it related to the diabetes, or the diabetes and the myopia. However, whether it . was to do with the diabetes or the myopia, Mr Lewis was still aware in general that there was a greater than 1% risk. - 7- I am persuaded that Mr Lewis did have a discussion about the risks involved and that whether this risk was due to his myopia or to some other factor, that the risk was in the region of 2%. I am therefore persuaded that he gave informed consent to the operator and that medical mishap cannot therefore be deemed to have occurred. I am very sorry but this review is unfavourable and I uphold the decision of the Medical Misadventure Unit." The Review Officer was referring to a finding of the Medical Misadventure Committee which was as follows: "Dr Lawton's letter of 13 October 1994 states that he normally discusses the possible complications of cataract extractions with patients at his initial consultation with them. Given that the initial consultation with Mr Lewis was in November 1990, Dr Lawton cannot remember the exact details of what he told Mr Lewis at that time. A senior registrar saw Mr Lewis in the pre-admission clinic in late 1991, and a consent form was signed by Mr Lewis. Although Dr Lawton does not know what was said during the consultation with the registrar, he comments that it is standard practice to explain the possible complications of surgery, and the possibility of retinal detachment is always included. It is also standard practice to indicate that pre-existing high myopia slightly increases this risk. Mr Lewis' letter of 18 October 1994 states that he was warned about a failure rate of less than 2%. Further than this, Mr Lewis' letter does not comment with respect to the increased risk of retinal detachment due to myopia. There was no evidence before the Committee to establish that the level of informed consent was inadequate. The Committee therefore considered that medical error has not occurred. The incidence of retinal detachment in highly myopic patients is greater than 1% following uncomplicated cataract surgery. The Committee was satisfied that Section 5(3) of the Act does not apply in this case, as the evidence before them suggests that Mr Lewis was told of his increased risk of retinal detachment prior to the surgery. The rarity criterion is hence not met." I have set out those findings because, as counsel submitted, where the ground of appeal is that the Review Officer's decision was against the weight of evidence, there is some onus on the appellant to persuade the Court that the Review Officer was wrong. I find, on the material before the Court, that it is not established that the Review Officer came to a wrong conclusion in respect of the findings of the Medical Misadventure Committee. Her decision does not draw a necessary distinction between advice given under s 5(3) and the question of informed consent under subs (6), but that does not appear to affect the substance of the finding that the Medical Misadventure Committee was correct. I find that the Review Officer's conclusion should not be disturbed in that respect, and the effect of the Review Officer's decision is to confirm the view of the Medical Misadventure Committee that the appellant was told of increased risk of retinal detachment being a risk exceeding 1% in the case of highly myopic patients. In having regard to that decision, it is necessary to put aside a possibility, which has not been the subject of evidence, that there were other risks that came into the overall assessment of 2%, so as to raise the possibility that the advice did not indicate that - 8. retinal detachment as an adverse consequence standing alone was a risk in more than 1% of cases of patients with characteristics of high myopia. The evidence given to the Medical Misadventure Committee, the Review Officer and to the Court, did not explore the possibility of other risks and it would not be appropriate to take such a possibility into account in the face of the Review Officer's finding and in the absence of any further evidence on that question given on the hearing of the appeal. I find therefore that the appellant was informed of a risk of retinal detachment in his case exceeding 1%. Counsel for the appellant addressed a further argument that it was not sufficient merely to inform the appellant of the extent of the risk, but that it was necessary also to inform him that it was a greater risk than existed in the ordinary course. What advice must be given? Subsection (3) must be read together with the preceding subsections as they apply to medical mishap. Medical mishap is an adverse consequence of treatment characterised by rarity and severity. Severity is not in issue. Rarity is determined by the threshold of 1% so that cases over that threshold do not qualify as an adverse consequence by way of medical mishap. Subsection (3) operates to exclude a further class of cases where an increased risk exists because of the circumstances of a particular person, where the greater risk was known to that person. Counsel for the respondent and for Dr Lawton submitted that the defendant's case would be excluded as long as he was informed of a risk exceeding 1%, and that the statute does not require that he should have been informed that the risk was greater than the risk occurring in the ordinary course to persons without his particular characteristic of myopia. Counsel for the appellant took issue with that. If the sections are read together the intention of subs (3) is fairly clear. It operates to exclude persons who have a higher risk and are aware of it. That category of persons is excluded manifestly because, for them, the consequence is not to be regarded as rare. Subsection (3) adds the further requirement that the person should have knowledge of a certain kind before being excluded. Although the words of the section may be given a possible meaning that the person concerned should know of the difference between the risk to him or her compared with the risk to the general population, the need for such detailed knowledge seems to have no relevance to the evident intention of merely excluding a group of persons for whom the adverse consequence of treatment would not in fact be rare. I find that the evident intention is achieved by the interpretation urged by the respondent and counsel for Mr Lawton, that is to say that subs (3) excludes persons who are aware of a risk to themselves of a degree greater than 1%. It is unnecessary that the person should be aware that the risk for the general population is only 1%. Such knowledge seems to be superfluous and it should not be implied in the words "a greater risk". A contrary argument is that the word "greater" is redundant. I think that it may be included in order to avoid a further possible interpretation that the particular person must have some precise information of risk. Information as to a greater risk imports the idea of information of a risk exceeding 1%. I do not think that it carries the notion of knowledge of the comparative risk to different populations of persons with or without the particular circumstances of the person concerned. Furthermore, I consider that it is unnecessary for the person to be informed of the reason for the risk. The section is aimed at excluding persons aware of a higher risk, it is not aimed at protecting persons who have not received precise advice of medical reasons to expect a higher risk of complications in their particular case. Having reached those conclusions, I find that the conclusion reached by the Review Officer was correct and the appeal must be dismissed. Medical error Although the Review Officer referred to informed consent in reaching her decision, there is a separate issue of informed consent requiring broader advice to the patient than merely the notion of a specific adverse risk exceeding 1%. There are three possible issues involved in this appeal. They are: 1. Whether the appellant suffered medical misadventure by medical mishap, namely retinal detachment being a rare and severe consequence of cataract surgery, or 2. Whether the appellant suffered injury by medical misadventure through medical error, namely by the adverse outcome of cataract surgery undertaken without fully informed consent when he was not informed of the likelihood of the adverse consequence of retinal detachment, or 3. Whether the appellant suffered medical misadventure by medical error when he suffered a retinal tear post-operatively and when the retinal tear was not promptly treated and retinal detachment occurred. The defendant's claim form dated 9 June 1994 referred to failure to diagnose a detached retina after the cataract surgery. Although the claim was lodged on that basis, the Medical Misadventure Committee disposed of the post-operative question quite shortly, on the basis that the approach of waiting and observing the patient's progress was standard and had no effect on the ultimate outcome. The Committee went on to give fuller consideration to the other two aspects of the claim. Before the hearing of this appeal, several directions orders were made, the last being on 22 August 1996 requiring any application to be filed by 30 October 1996 for leave to call oral evidence on the hearing of the appeal. The appellant consulted Mr Philip Polkinghorne, ophthalmologist specialising in vitreoretinal surgery. Mr Polkinghorne's proposed evidence touched on the question of delay after observation of possible post-operative complications. Mr Polkinghorne did not make himself available to give oral evidence and the appellant notified the Court of intention to seek an adjournment. I indicated that the application would not be favourably received because no application for leave to call oral evidence had been made and the briefs and draft submissions concentrated almost entirely on the questions of medical mishap and medical error through failure to obtain informed - 10 - consent. At the beginning of the appeal hearing the positions of the parties were discussed at some length. Arising out of that, the appellant elected not to apply for adjournment and to proceed on the basis that the only issues to be determined on the hearing of the appeal were the first two issues, namely those connected with the advice given to Mr Lewis in connection with the cataract surgery itself. Counsel were agreed that the appeal would determine the validity of the appellant's claim for cover without deciding the question of medical error in relation to diagnosis and treatment of post-operative complications and without referring the matter back for the Review Officer to determine that question. Informed Consent The question of informed consent has to be dealt with in the absence of Dr McGeorge, who was given notice of the appeal and of his right to be heard, but did not respond. The evidence of Mr Lawton concerning Dr McGeorge's thoroughness and his own understanding that registrars were well aware of the need for pre- operative informed consent, and that the Dr McGeorge was sufficiently qualified to advert to the correct considerations in providing information to enable the patient to consent, are not of direct relevance. Even assuming that Dr McGeorge was skilful and competent, the crucial question remains whether he did in fact discharge his duty in obtaining informed consent. The Court is faced with two questions, first in deciding what information is likely to have been given, and secondly deciding whether the information was sufficient to discharge the duty of care which existed in the circumstances. The findings of the Medical Misadventure Committee accepted, as did the Review Officer, that advice of a failure rate of less than 2% was sufficient to take the case out of the classification of medical mishap. The Committee dealt with appellant's written comment that Dr McGeorge responded to the appellant's request about the failure rate and told him that it was less than 2%. The Committee concluded there was no evidence to establish that the level of informed consent was inadequate so it concluded that medical error had not occurred. The Committee did not give reasons including the degree of information that would have been required to discharge the practitioner's obligation, and did not deal with the question of vagueness of the advice and its likely significance or lack of significance to the patient when the advice did not specifically deal with the risk of actual loss of vision, and the fact that it was not such a marginal risk to be of no real significance to the appellant. The Review Officer made no general finding. It is possible that she equated the giving of informed consent with the providing of information of greater risk under s 5(3). She did make the following findings: "Thus Mr Lewis had to weigh up whether he should have the operation done at a younger age and whether he could afford at that stage to take time off work and pay for somebody else during his recovery which was said to be up to a few weeks. - 11 - Therefore he maintained that it was important him to find out what the failure rate of the operation would be. He said he made a general query on this point, ie failure rate, but there was never any mention of myopia. The thrust of the conversation was regarding diabetes. According to Mr Lewis' evidence, Dr McGeorge talked of the general risks and how long Mr Lewis would be off work. They did discuss the failure rate which was deemed to be "less than 2%". Mr Lewis said that if they had said there was a chance he would lose the eye, he would not have gone ahead with the operation, as there was still life left in the eye which could have seen him through to retirement. At that stage he was about 60 years old and still wanted to continue working for a further 5 years as he was contracted to the post office. At the very least the contract was due to be renegotiated in the subsequent two years and he would have least chosen not to have the operation until then." The transcript of the review hearing shows that the appellant used the expression "failure rate" which he said he was advised was less than 2%. He said that he asked Dr McGeorge about the failure rate but did not ask about specifics because he didn't know what he was talking about, meaning that he did not inquire into the technical details of the operation. He said to the Review Officer that all he wanted to know was "did your eye fall out, would the bit of plastic fall out, or generalities, but there was never any mention myopia". He said that the main thrust from his point of view, as a result of his understanding from his general practitioner, was the connection between diabetes and failure of cataract surgery. The features of informed consent were discussed by the High Court of Australia in Rogers v Whittaker (1992) 175 CLR at page 488: "The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a course determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment, and on the other hand, the provision of advice or information to a patient. In diagnosis and treatment the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill, however, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of - 12- which responsible professional opinion will have an influential, often a decisive role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose, having regard to the patient's apprehended capacity to understand that information.' I consider that, in this case, the essence of the information to be imparted to the appellant was that the risk of permanent loss of sight was a significant risk. At the same time, it would of course have been necessary to explain the benefits of a successful operation, so that the patient could weigh the risks against the benefits. The extent of the risk needed to be explained in a meaningful way. There must be a problem with couching an explanation in percentage terms alone, because such an explanation would tend to clothe the information with an air of mathematical certainty. Also, the concept of percentage probabilities is likely to be more or less clearly understood by different people. There is, as in this case, a possibility that a clear error could be made in expressing the possibility of failure in percentage terms because the figure used might be wrong or misleading. For instance, to state that the likelihood of failure is less than 2% tends only to raise a question of how much less than 2%. There is then some further evidence before the Court on this appeal tending to indicate that the failure rate in fact exceeded 2% in the case of highly myopic patients. The Corporation extracted certain information from the Medline database and made it available to counsel for the appellant. In analysis of the information was not carried out in submissions on the appeal, but counsel for the appellant referred to part of that information that indicated that case studies of retinal detachment following cataract surgery show less than 1% risk in the ordinary course but as much as 3.6% risk in the case of highly myopic patients. The data in fact refers to sample groups in which the incidence has been found to exceed 3.6%. The respondent did not suggest that the appellant's working figure of 3.6% was wrong. The Medline data does not support the proposition that the risk is less than 2% in the case of highly myopic patients. There is no evidence of sufficient weight to rebut the appellant's own evidence that Dr McGeorge told him that the failure rate was less than 2%. There is no reason to reject the appellant's evidence on that point. That leads to the conclusion that the information that Dr McGeorge gave to the appellant was factually incorrect. That alone would not inevitably lead to a finding of negligence. As I have said, the obligation of the surgeon obtaining consent from the appellant was to give appropriate advice of significance of the risk. I do not think that it would have been necessary to deal with reasons for increased risk. In order to make an informed decision whether or not to accept surgery, the appellant did not need to know why the risk was greater in his case, nor even to know the fact that he carried a greater risk than the population at large. He needed only to know the significance of the risk in his particular case. He did need to know what risk was being discussed, that is to say - 13 - that it was a risk of loss of vision rather than simply the risk of ineffective surgery, leaving him in no better position than before. In that respect, I have to reject the appellant's evidence that he did not appreciate that there was a risk of losing his sight. First, it does not accord with reality that a person in the position of the appellant should have believed that an operation did not present any risk of loss of sight. The risk, even if it is a marginal one, would, to an ordinary person, seem to be inherent in the operation. Secondly, the appellant acknowledged in cross-examination that he knew that a lens was being removed. In his evidence in the appeal, he used the word "rejection" rather than "failure" connoting his idea that the plastic lens might be rejected. Mr Lawton said that there is no medical basis for that, but the fact is that the appellant was addressing the possibility of losing his own lens and being unable to receive the artificial intraocular lens. That tends to confirm the likelihood that the appellant was conscious of a possible loss of sight. Against that, is his evidence that he had been told that he could survive with the cataract, effectively to the end of his working life, and that his main concern was to be able to continue working. His own view of the choice that he had was to either take the risk of delaying the surgery in order to continue working because he believed that his eye would last out, or to undergo surgery, believing that his eyesight would not become worse, but facing the unwelcome prospect of surgical intervention. In hindsight, he is adamant that the possibility of loss of vision was not made known to him. Mr Lawton's evidence that patients tend to forget negative advice is a view which is founded on long experience, however it is really a matter within the purview of the Court to weigh and not one upon which expert evidence should be required. There is a clear possibility that the appellant's recollection has been clouded over the years by the adverse effects of the operation, the difficulties that he experienced in remedying the complications following the operation, and his need to address the question of compensation. It is unlikely that his present recollection is at all precise. I find it more probable than not that he knew that failure imported, at least to some degree, a loss of vision following the operation. The expression "failure rate" is by no means precise. It could be taken to include some proportion of operations where the surgical procedure could not be attempted, or whether the procedure was accomplished without any improvement in vision, or where the procedure resulted in consequences or complications including loss of vision. Whether or not any of those possibilities are in fact part of the range of considerations, I think that a person receiving advice could very well question what "failure rate" included, and may not necessarily understand that failure rate meant only one thing. In providing information for consent the appellant needed to be informed not only of the degree of risk of adverse consequences, but the general nature of the possible consequences, to avoid any assumption that the consequences did not include loss of sight. The outcome of this appeal turns on the limited evidence available in the absence of any evidence from Dr McGeorge. I find that the pre-operative information described by the appellant was in fact deficient, and that the deficiency reflected negligence on behalf of the medical professional concerned. In the unusual framework of this - 14- appeal, a cautionary note needs to be sounded that this is not a finding against Dr McGeorge who is not represented on the appeal and, as he is likely to be living in the United Kingdom, may have elected not to be represented for reasons that do not imply any acceptance of the appellant's evidence. Furthermore, the respondent has not taken steps to secure evidence from Dr McGeorge. The finding in this appeal is based on limited evidence and is determinative only of obligations between the appellant and the respondent governed by s 5(6) of the Accident Rehabilitation and Compensation Insurance Act 1992. In making that finding, the standard of proof must take account of the fact that the appellant's claim involves an allegation of professional negligence. There must be recognition of the general competence of registrars to obtain pre-operative consent on correct information and weight is to be given to evidence of the competence of Dr McGeorge in particular. On the hearing of the appeal, the appellant said that Dr McGeorge tended to be persuasive about the benefits of the operation. The appellant said that Dr McGeorge suggested that he would be an idiot not to undertake the operation, and that he gave him a "hard sell". There may well be a tendency in the appellant's evidence to exaggerate or select parts of his recollection of the discussions between himself and Mr Lawton, as well as Dr McGeorge, because of natural processes of modification of memory, perhaps influenced by his investment in the issues now to be determined. In relation to his recollection of what either doctor said, he was asked in cross- examination when he was first required to recall what Dr Lawton had said to him and answered that it was probably in 1994, that is to say between three and four years after the event. The appellant was accustomed to keeping diary entries of important events, including medical consultation. He said that what he recalled was what he had in his diaries. Although the diaries were not present in Court, it may reasonably be inferred that the diaries did not contain any detail of advice about risks and benefits of the proposed operation. There is every reason to suppose that the appellant's recollection is incomplete, but that does not mean that the Court can supplement the evidence with supposition of what the appellant may have been told by Dr McGeorge. I cannot conscientiously reject the appellant's evidence that was accepted by the Review Officer and repeated on appeal, that the essence of the information given to him was that the failure rate was less than 2%. The appellant's evidence needs to be regarded with caution, but I do not consider that it should be rejected as untrue. His evidence of Dr McGeorge's advocacy for the operation is a matter that may be taken into account to the extent that it demonstrated a need for proportionate emphasis to be given to the risks of the operation. The kind of information that was required was to the effect that there was a significant risk to the appellant that the operation could result in complications involving permanent loss of sight. In the absence of specific inquiry by the appellant, there would have been no need to specify the medical nature of the complications. Before leaving this question, it would be as well to refer to a subsidiary issue concerning a written form of consent that was used at Waikato Hospital and which - 15 - was required, according to usual and invariable procedures, to be completed before a patient was admitted to theatre. The form would ordinarily have been completed at the time of the pre-operative clinical examination on 5 November 1991 but it was not. It was dated on the same day as the operation. The appellant now says that he recalls that it was brought to him after the operation when he was in a hospital bed and was not able to see. The form contains an endorsement by Dr McGeorge that he had explained the nature and purpose of the course of treatment and had answered all the patient's questions to the best of his knowledge, and that in his view the patient had been adequately informed and had consented. The form is of evidential value only and there is nothing to be gained in attempting to resolve the question whether it was signed immediately before or immediately after the operation. There may be some significance in that fact that it was not signed on 5 November 1991, which may indicate that there was not a part of the clinical consultation devoted specifically to obtaining formal informed consent. Undoubtedly, however, there was a discussion of the risks and benefits of the operation, leaving the crucial question of the manner in which the risks were explained. For those reasons the appeal is allowed. The Review Officer's decision is revoked and the appellant will have cover for injury by medical misadventure caused by medical error in failing to obtain informed consent on 21 November 1992. The appellant will have costs of $800. Counsel for Dr Lawton applied for an order for costs. That could lie only against the Corporation, but as the Corporation has not taken issue with Dr Lawton it would be inappropriate to make any order for costs following the outcome of this appeal. DATED at WELLINGTON this 12 day of May 1997 D A Ongley District Court Judge