I recently underwent surgery on my jaw to correct a malocclusion. I was told by my doctor prior to the procedure that there were some small risks associated with nerve damage and pain after the surgery but that they would most likely fade within a year. It had now been 16 months since the surgery and the pain in my jaw is excruciating to the point where I cannot function without the use of morphine. Due to the side effects of the morphine I am unable to work, carry out home duties, care for my children or socialise. When I complained to my doctor he confessed that this was a risk but that he hadn’t warned me about it before the surgery as he considered the risk to be far too small to get me worked up over.
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Answer by Shamaila Khan, Kingsville 3012 VIC
- It is possible that you may have a claim for compensation.
- Doctors are not obligated to inform patients of each and every single risk associated with the proposed treatment.
- If there is a risk of a catastrophic outcome for the patient the doctor must inform the patient of that risk and obtain their consent to the procedure even if the risk of that outcome eventuating is extremely small.
- The doctor may avoid liability if he can demonstrate that you would have undertaken the surgery even if you had been informed of the risk. For example if the surgery was necessary to save or significantly improve your quality of life then it is likely you would have proceeded regardless of the risks.
- This is highly unlikely to have been the case if your surgery was primarily for cosmetic purposes.