Usual practice and the failure to warn – guidance from Neville v Lam (No 3).
Neville v Lam (No 3) arose out of an endometrial ablation (destruction of the lining of the uterus) performed upon the plaintiff by the defendant doctor on 3 November 2004 in order to treat the plaintiff’s heavy menstrual bleeding.
The plaintiff said she did not believe it was possible for her to become pregnant following the procedure and that she was not warned by the defendant that this was a possibility.
However, the plaintiff subsequently became pregnant, and on 24 August 2006 gave birth to a boy who suffered from multiple disabilities. She brought a claim for damages associated with her pregnancy and the birth, including the costs of rearing and maintaining her son.
The defendant doctor argued that while he could not recall the advice provided to the plaintiff almost 10 years earlier, based on his usual practice he had warned the plaintiff regarding the risk of pregnancy and the ongoing need for her to use contraception.
Significantly, the defendant had in 1992 published 2 articles setting out the risk of pregnancy following endometrial ablation and the need for contraception. He said that it was his usual practice to provide written information to reinforce the verbal information he provided during a consultation. Since about 1992 it was also part of his usual practice to provide the written information by way of a brochure. While he could not recall giving the plaintiff written information he believed that he had done so. The defendant’s notes also (without directly addressing the issue) suggested that issues of contraception would probably have been discussed.
The Court found that although the plaintiff was an honest witness, this did not mean that her recollection regarding the relevant advice was accurate. It found that the plaintiff was advised of the risk of pregnancy and the need for contraception following the endometrial ablation in at least one of her consultations with the doctor prior to the procedure. The plaintiff’s claim therefore failed.
The Court did however note the difficulties arising from reliance upon the assertion of usual practice in medical cases. In particular, the Court noted the difficulties faced by the plaintiff in undertaking inquiries into and testing the truth of this assertion. The Court indicated that the appropriate approach was to consider the evidence in the context of the objective material and logic of events, the inherent probabilities and any admissions made against interest.
The case illustrates that reliance on assertions of usual practice will carry greater weight where they are accompanied by something else that supports the assertions and consistent with the remaining factual and logical background. The context derived from the doctors notes and the fact that his assertions regarding his usual practice were consistent with his previously published articles was important in this particular case.
Health care providers no doubt weary of advice from lawyers that they should create more comprehensive records. Such advice is easy to provide, but not necessarily so easy to implement given the other demands upon practitioners time and attention. Nevertheless, while the defendant ultimately succeeded here, placing a copy of the relevant information brochures on the file or otherwise recording their provision to the plaintiff might well have brought the matter to an end at an earlier stage and allowed the doctor to avoid the stress associated with the litigation and the court hearing.
  NSWSC 607.