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Surgical Sense and Legal Non‐Sense –Chappel v Hart revisited

The relationship between medicine and the law has always been uneasy. Many doctors have a perception that the legal process is ill-equipped to unravel complex technical issues when experts disagree about medical care. Judges, on the other hand, by their own account often fail to understand expert evidence and find deficiencies in the way it is presented to them. Expert evidence is sought by courts to assist in making decisions about disputed facts. The High Court noted in Rogers v Whitaker (1992) 175 CLR 479 that in medical malpractice litigation ‘Courts rely heavily, and in some cases, almost exclusively, on expert medical opinion’. Judicial evaluation of expert evidence utilises the forensic tools of examination-in-chief and cross-examination and there is an expectation that experts will be objective and not an advocate for either defendant or plaintiff. The reality of medical malpractice litigation is far removed from this utopian ideal, notwithstanding Codes of Conduct and other recently introduced court rules. This occasionally results in serious defects in the presentation and judicial understanding of medical expert evidence and sometimes produces legal outcomes that seem nonsensical to practising clinicians. Chappel v Hart, an oft-cited Australian judgment, involving an allegation of a failure to warn about the risk of injury to the recurrent laryngeal nerve (RLN), demonstrates these weaknesses. Examination of the surgical evidence in that case discloses what may be perceived as a miscarriage of justice, with extremely severe personal and professional consequences for the defendant doctor. Rogers v Whitaker reshaped the landscape of the legal obligation of doctors, particularly surgeons, to warn patients of the risks of medical treatment, imposing an onerous duty to consider the significance of a particular risk to a particular patient, no matter how rare the probability of that risk eventuating. Chappel v Hart appears to have extended that obligation to an absurd extent without consideration of the probability of the risk, which, it turns out, only ever eventuated in the case of the plaintiff, Mrs Hart.