The clinical negligence team at Penningtons Manches LLP has recently settled a substantial claim for damages for a man who was not given appropriate options when consenting for surgery for removal of his appendix.
Unusually this case proceeded on the issue of lack of informed consent alone. There was no criticism made of the decision to recommend surgery or of the technical performance of the surgery.
Cases involving consent have evolved significantly in the last few years. Historically the test used was whether a responsible body of doctors in the same field would have given the same information to the patient or would have provided additional information.
In the case of Montgomery v Lanarkshire Health Board  UKSC 11, the court considered the test of what constitutes informed consent to medical management and concluded that the application of what was already contained in GMC guidance was correct. In obtaining consent to a course of medical management, a doctor is ‘under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’.
In this case, the claimant attended East Surrey Hospital having been referred by his GP who suspected possible appendicitis.
The hospital doctor managing the claimant concluded that appendicitis was the most likely diagnosis and that he needed surgery. The claimant gave consent for an open appendectomy. According to his evidence, he specifically asked this doctor about the option of a laparoscopic (keyhole) approach as he understood the surgery and recovery to be less extensive. He was due to get married shortly and wanted to ensure that he would be fit for his wedding.
The claimant was advised that a keyhole approach was unsuitable for him because he was ‘too big’ and an open approach was the only option. On that basis he consented to the open approach to remove his appendix and surgery went ahead.
Following the surgery, the claimant suffered significant and ongoing problems including wound infection, extensive scarring and recurrent incisional hernias. These difficulties had an impact on his wedding and honeymoon and he required multiple additional surgical procedures. He has been left with long-term pain and restriction in his day to day life.
The claimant initially instigated a complaint but was unhappy with the response and then instructed Penningtons Manches to look into a claim for him. Investigations and expert evidence ascertained that the decision for surgery and the performance of the surgery were appropriate and that all the problems that the claimant had suffered were recognised complications of the open procedure that he had.
However, expert evidence obtained by Penningtons Manches was that he should have been given the option of a laparoscopic approach and that this was a credible option for him at that time. The firm’s clinical negligence team therefore pursued the case on the basis that the claimant was not given appropriate information about the options available to him and the relative risks and benefits. It was his case that had he been given the option, he would have had a laparoscopic approach, and that while this would have carried a risk of complications, on the balance of probabilities, he would not have had the same outcome.
The trust denied any failings in the care and argued that an open procedure was more appropriate. Court proceedings were issued and the case proceeded on to within weeks of a High Court trial. Eventually the defendant engaged in negotiations and the matter was settled for a substantial sum.
Philippa Luscombe, partner in the clinical negligence team at Penningtons Manches, who oversaw this claim, comments: “This was an interesting case as it ran on the issue of consent only. We accepted that an appendectomy was needed. While an open approach was reasonable, the claimant argued that he should have been given the option of a keyhole approach. Under the Montgomerey test, this meant that he had not given informed consent to the surgery. He has been left with long-term problems when he had stressed the importance of making a quick recovery.
“Ironically, because the trust did not make an early admission, the problems the claimant had been left with became more evident, increasing the value of the case. It is a shame that an early resolution could not have been offered to enable the claimant to recover damages to fund further treatment for his pain and other associated problems.”