Hindsight is a powerful influence in the instigation of informed consent cases. However, what patients think after the event is not the issue when assessing their claims: it is what they thought when they agreed to the treatment that matters.
Some doctors have been concerned that the law on ‘informed consent’ makes it too easy for patients to sue if something goes wrong in a medical procedure. Even if the doctor has performed a procedure with due care and skill, the patient may sue because the doctor did not disclose a ‘material’ risk that later eventuated. Patients may allege that they would not have agreed to the procedure if told about the risk, and that the doctor’s negligent failure to inform about the risk therefore caused the injury or loss that they have suffered (see box on page 80).
These concerns may be allayed to some extent by the recent decision of the High Court of Australia in Rosenberg v. Percival (2001). All judges were clearly aware of the dangers of the ‘retroscope’ in deciding whether a patient would have acted differently if fully informed about the risk in question. This is evident from the comments quoted below. The judges unanimously rejected the patient’s insistent claims that she would not have agreed to undertake surgery (that she clearly needed) if she had been warned of the remote risk that ultimately eventuated, and she subsequently lost the case.