Medical malpractice is a legal offense that occurs when a medical professional fails to perform his or her medical duties due to negligence, thereby causing injury or death to a patient. Therefore the purpose of this essay to highlight how medical practitioners can be negligent by not informing the patient about the inherent risk of the medical procedure such as in the case of Rogers v Whitaker [1992] (hereinafter Rogers). Additionally Cranley v Medical Board of Western Australia [1990] (hereinafter Cranley) will also be investigated to demonstrate how medical practitioners can be alleged to be found for conducting improper professional conduct, and why this improper conduct was overturned by the courts.
Failure to disclose the inherent risk of a medical procedure
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In handing down their judgement Mason CJ, Brennan, Dawson, Toohey and McHugh JJ stipulated that:
A reasonable person in the patient 's position, if warned of the risk, would be likely to attach significance to it; or if the doctor is or should reasonably be aware that this particular patient, if warned of the risk, would be likely to attach significance to it.
(Cica, 1995)
The standard of care required by the law, in respect of the provision of information about risks inherent in medical treatment, therefore is determined by the court with reference to the 'needs, concerns and circumstances of the patient,.’ It is not determined by reference to the standards or practices of the medical profession - the court has 'simply no occasion to consider the practice or practices of medical practitioners in determining what information should be supplied, The reason given by the High Court for this conclusion was that 'no special medical skill ' is involved in disclosing information to a