Lost in translation – Biggs v George [2016] NSWCA 113

In late 2008, the plaintiff, who understood limited English, was diagnosed with a right-sided acoustic neuroma/non-malignant growth. On 30 November 2009, the plaintiff underwent complex intra-cranial neuro-otologic surgery within the base of her skull for excision of the neuroma on the sheath of the right acoustic nerve.

Prior to the operation being performed, the plaintiff attended four pre-operative consultations:

• First consultation – on 6 March 2009, the plaintiff saw Professor Paul Fagan. A friend of the plaintiff acted as her interpreter. Based on what Professor Fagan told her through the interpreter and her family history of cancer, the plaintiff mistakenly believed that she had a brain tumour that required removal. It was decided that surgery was not required at that time and treatment could be postponed for one month
  
  
• Second consultation – on 3 April 2009, the plaintiff saw Dr Nigel Biggs, a surgeon. The trial judge accepted the plaintiff's evidence that she had attended the consultation convinced that she had a brain tumour that required surgical removal and that Dr Biggs did not inform the plaintiff of the risks associated with the surgery or of any alternate treatment options. Dr Biggs had no recollection of the consultation and made no notes. His evidence was based on his usual practice for disclosing risk warnings, based on the information available to him about the size and position of the plaintiff's neuroma and her symptoms
  
  
• Third and fourth consultations – during the third and fourth consultations, held at pre-admission and pre-anaesthetic clinics, a professionally trained interpreter was present. A consent form was signed by the plaintiff and Dr Biggs. Dr Biggs was not asked on cross-examination whether he specifically discussed the various matters identified in the form with the plaintiff, ie whether the form was falsely certified.

The operation was performed at St Vincent's Hospital in Sydney. During the surgery, there was inadvertent division severance of the plaintiff's adjacent facial nerve, resulting in right-sided facial palsy.

The plaintiff commenced proceedings in the District Court of New South Wales, claiming damages for negligence against Dr Biggs, and St Vincent's Hospital Sydney Ltd (the defendants), for vicarious liability of its medical staff. Dr Biggs led the surgical team that carried out the surgery, and performed the first part of the surgery, but was not present when the nerve was severed. He was called back to surgery to repair the severed nerve.

The plaintiff's allegations of negligence were directed at the way the operation was carried out and for a failure to warn of the risk of damage to the facial nerve. The fact that the principal operation carried a significant risk of injury which eventuated was not in dispute.
The trial judge stated that each of the four pre-operative consultations presented an opportunity for the medical practitioners to take steps to obtain consent and ensure the plaintiff's understanding of her condition and treatment options. In relation to the first appointment, the trial judge held that it was not part of the actual consent process, but was significant as it was the foundation upon which the plaintiff made decisions regarding her future care and treatment and that greater care should have been taken in terms of communication with the plaintiff as there were obvious language barriers.

The trial judge was concerned that because there were no notes about the consent process taking place (with the exception of the consent form), this suggested that the process had not taken place. In addition, the trial judge set out 16 elements of the communication process that he considered should be addressed by medical practitioners with their patients in all cases when describing material risks to a patient.

None of the interpreters were called to give evidence. There was evidence at trial that the plaintiff thought her friend had limited skills in English. The medical practitioners were not aware of this at the time of the consultations.

The allegation of intra-operative negligence was dismissed, however, the allegation of failure to warn was upheld and the plaintiff was awarded damages in the amount of $331,000.

The defendants appealed the decision.

In the New South Wales Court of Appeal (Court of Appeal), the relevant issues for determination on appeal were whether:

• The duty of care of the medical practitioner in warning a patient of the risks of a surgical procedure (where an interpreter was required) was correctly articulated at trial, and if not, whether the scope of the obligation was overstated (the first issue)
  
  
• Adequate warnings as to risk had been given (the second issue)
  
  
• The failure in communication materially affected the plaintiff's decision to have the operation (the third issue).

In relation to the first and second issues, the Court of Appeal held that:

• The defendants were able to establish that the material risks of the surgery were conveyed to and understood by the plaintiff, despite the language barrier, and that accordingly the misunderstanding of the medical advice did not amount to a breach of duty of care. Payne JA confirmed that the 16 steps set out by the trial judge extended far beyond the duty which existed in this case. It was found that the onus imparted by the trial judge was over-stated and unfairly extended the scope of the relevant duty to take reasonable care in warning of the material risks of a procedure

• The trial judge found that there had been no adequate warning as to surgical risks on the basis that Dr Biggs had falsely certified the steps involved in obtaining informed consent. However, as that issue was not put to Dr Biggs in cross-examination, the Court of Appeal found that the trial judge was not at liberty to make that finding.

In relation to the third issue, the Court of Appeal held that the question as to causation posed by s 5D of the Civil Liability Act 2002 (NSW) required consideration of whether the plaintiff would have had the operation but for the alleged breach of duty. The evidence at trial indicated that the plaintiff held a belief concerning the existence of a brain tumour and the need for surgery which was not attributable to any breach of duty by the hospital or any medical practitioner. The belief was due to the miscommunication. Any failure to warn was therefore not causative, as required by s 5D. The Court of Appeal allowed the appeal and set aside the judgment in favour of the plaintiff.

This case serves as a reminder that medical practitioners have a duty to adequately advise patients of the material risks of treatment of their illness. Where language barriers exist, it is recommended that medical practitioners utilise a trained interpreter to facilitate discussions with patients so as to reduce opportunities for patients to misinterpret the advice.