In Tai v Hatzistavrou (unreported, NSW Supreme Court, Court of Appeal, 25 August 1999) the plaintiff had been a patient of the defendant gynecologist for a period of 12 years. During this time she had a number of consultations on a bleeding problem. The doctor was aware that the plaintiff's mother had died of breast cancer, that her mother's sister had breast cancer and that her sister had pancreatic cancer.

In December 1992 the doctor recommended a certain surgical procedure and filled out the relevant form. The plaintiff took it to the admission office of the hospital which was located over the road from the doctor's rooms.

Ordinarily the hospital would have fixed a date for the operation within about two months and notified the plaintiff, however, the hospital did not notify the plaintiff of any time to present herself for the operation (the admission form appears to have been lost).

Some nine months later, the procedure was carried out, and almost immediately led to the discovery of ovarian cancer, which had spread to the uterus. This meant that the plaintiff had to have a radical hysterectomy and also had to undergo a colostomy.

The District Court found for the plaintiff in damages for medical negligence. The doctor appealed the decision.

On appeal the Court of Appeal affirmed that the trial judge was correct and that the doctor had failed in his duty to the plaintiff to take reasonable steps to see that the operation he thought necessary was carried out.

The doctor argued that an adult patient had a right to decide for himself or herself whether to go ahead or not to go ahead with a medical procedure. The doctor also argued that it was too onerous in practical terms to have a reminder system.

Both of these arguments were rejected by the court which held that the legal duty of the doctor to remind the plaintiff of the need for a medical procedure in no way cut across the patient's autonomy, and that a reminder system would not create enormous practical or administrative difficulties.

The court held that the doctor's practise of sending patients to hospital to put into train the fixing of dates for operations he had advised them to have was defective. This defect had led to a dangerous delay in the diagnosis of the cancer. Had the operation been carried out in early 1993 it would have been likely to detect the presence of the ovarian cancer at a stage not requiring a colostomy.

Clients should remember that the decisions such as this are always based on the facts and circumstances of the particular case. Nevertheless this decision emphasises the onerous nature of the duty of care owed by doctors to their patients. A doctor has a positive duty to advise the patient about appropriate operations and to follow up with the patient if they have not presented for them.