Consent and causation in the surgical patient

Posted: 26/11/2018

Penningtons Manches’ specialist orthopaedic claims subteam has settled a case involving negligent surgical treatment for patellofemoral arthritis. The patient concerned was awarded £145,000 after her knee surgeon promised her a new technique with a 95% success rate for revising her patellofemoral arthritis. In reality, this likelihood of success was a vastly inflated figure, for surgery which had a very small chance of curing her symptoms.

There were a number of issues in the case, but the consent element raises a point that clinical negligence lawyers face quite frequently, ie whether the patient was given sufficient information with which to provide informed consent to surgery. The rules on consent have changed fairly dramatically in favour of patients in recent years, and gone are the days when surgeons can simply tell patients what they think is best for them.

Patients are now entitled to take a full part in the decision making process, including a full discussion on the options available to them, and the risks and benefits of each. The Montgomery case of 2015 was hailed as a landmark decision in terms of patients’ rights, and there was a dramatic shift in the consenting process. Previously doctors had essentially been in the position where if they proposed a treatment, they only had to show that this treatment was a reasonable option, and they were under no obligation to discuss all of the other potential options and risks with the patient.

However, post-Montgomery, doctors now have an obligation to warn a patient of any material risk in their treatment, either if a reasonable person would attach some significance to the risk, or if the surgeon was aware, or should be aware, that the particular patient would attach significance to it. Following that case all reasonable treatment options need to be presented to the patient, including non-operative options and the option of doing nothing, along with a discussion on the risks and benefits of each.

However, it is important to highlight that the basic tenets of a clinical negligence claim will still apply to this type of case, ie in all cases, including those brought on the basis that there was a failure to gain informed consent, claimants still need to demonstrate both breach of duty and causation in order to bring a successful claim.

A failure to discuss all of the available options with a patient will likely constitute a breach of duty, but the onus is still on the patient/claimant to demonstrate that there was causation attached, ie they will need to demonstrate that if they had been fully informed, they would have made a different decision in relation to treatment.

In this particular case, the defendant’s expert witness agreed that the prospects of success given by the surgeon were overly optimistic (ie there was a failure to inform the patient fully). However, it was still argued that she was ‘at the end of her tether’ with her symptoms, and had seen the surgeon specifically with surgery in mind. Therefore, so the defence went, irrespective of the fact that the advice given to her was incorrect, she would have gone ahead with the surgery even if she had been correctly advised.

The claimant was clear that she had previously declined other surgical procedures with limited prospects of success, and in fact she had a phobia of hospitals and medical procedures. If she had been made aware that physiotherapy stood as good a chance of improving her symptoms, she would have fully engaged in that, and she was only willing to consider surgery that had good prospects of curing her condition, rather than producing a temporary improvement in symptoms.

This was a consistent line that she had set out since the beginning of her claim, and was contained in her witness statement, taken at an early stage. Therefore, Penningtons Manches’ clinical negligence specialists felt that in this case they had a clear, logical argument that she would not have undergone surgery but for the negligent advice.

However, it is not always so straightforward. Frequently potential claimants are understandably concerned that they may have been given inappropriate advice prior to consenting to surgery.

With hindsight, it is very easy to look back and say that they would not have made these choices if they had known the results. However, that is not sufficient to bring a successful claim. Claimants will have to put themselves back in the position they were at the time, without the benefit of hindsight, but with appropriate advice, and consider whether they would have made the decision to proceed with surgery or not.

The reality is that even with a full discussion of the options, risks and benefits, patients will often be significantly swayed by the recommendation of a surgeon. It can therefore be very difficult for claimants to argue how the outcome would have been any different, as the court will want to see convincing, logical evidence that a patient would have gone against the surgeon’s recommendation had they been given the appropriate facts.

Another case is of relevance to claims where informed consent is not gained, that of Chester v Afshar. The key point to be taken here is that if a claimant underwent surgery, but with appropriate information would have deferred surgery, and in the event developed complications, even if the complications developed non-negligently, the patient can claim for the entirety of those complications. The logic being that with surgery on another day, if the risk of complications is low, on the balance of probabilities they would not have occurred.

This remains the situation, but the recent case of Diamond v RDE Trust [2017] highlights the difficulty that claimants face. In Diamond, the court found that the surgeon had breached his duty in failing to discuss all of the reasonable options with Mrs Diamond. It further accepted that she had an honestly held belief that she would have chosen a different course of action, but despite her “wholly truthful” and credible evidence, the court still did not accept that she would not have opted for a different course of action at the time.

Philippa Luscombe, partner in the clinical negligence team at Penningtons Manches LLP who represented the claimant, commented: “A number of surgeons have some way to go to adopt the correct attitude towards the consenting process but hopefully this is improving. With the benefit of a patient’s notes, it is often fairly straightforward to demonstrate what advice was given and whether this was deficient, but, the greater challenge from a claimant’s perspective can often be demonstrating that they would have made different decisions.

“In this case, our client was very clear and consistent with her evidence, and it was obvious that her surgeon had made her promises that he was never going to deliver on. We were able to make a strong case that she would never have gone ahead with surgery if it wasn’t for the inflated success figures given to her.” 

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