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A violinist named Sarah requires an operation on her wrist. Concerned about the appearance of her wrist when playing in public concerts, she asks the doctor about scarring and general risks as a result of the operation. The doctor informs Sarah that there is approximately a 10% risk of significant scarring to the wrist but fails to inform her about the risk of permanent nerve damage, which is 7%. Sarah undergoes the operation, suffers nerve damage, and is no longer able to play the violin at concert level.
Advise Sarah as to her rights against the doctor in this case.
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The doctor should have disclosed the risk of permanent nerve damage, which would be a material risk. All material risks must be explained to a patient, and a 7% risk of permanent nerve damage is one which Sarah would want to know about because it would be an important factor for her, given her career. The case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 makes clear that the materiality of risks is determined by what a reasonable person in the patient's position would consider significant. By failing to disclose this material risk, the doctor has fallen below the standard of a reasonably competent doctor. Sarah can make a claim for both the personal injury and the consequential loss of earnings as they are connected to the personal injury and therefore not pure economic loss.
Key Point: Doctors must disclose all material risks to patients. A material risk is one that a reasonable person in the patient's position would consider significant. Failure to disclose such risks can result in liability for personal injury and consequential losses.
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