Video: Caught by consent

Being thorough around gaining adequate consent is not only good practice but also goes some way in protecting clinicians should a complaint be made at a later date. This video examines how thoroughly a clinician discussed the pros and cons of an operation with the patient before the surgery, and asks the question “did the surgeon get adequate consent?”

 

Video transcription

[Dr. Davies] Being thorough around gaining adequate consent is not only good practice, but also goes some way in protecting clinicians should a complaint be made later. The case we're looking at this time examines how thoroughly a clinician discussed the pros and cons of an operation with the patient before surgery.

When things went wrong, the question we were asked was, "Did the surgeon get adequate consent?" A 40-year-old nurse went to her doctor with back pain and was given a prescription for pain relief. After a month with no signs of improvement, she went to see a neurosurgeon privately, who recommended conservative measures. Another month passed and the patient, still in pain, phoned the surgeon, saying she was now suffering from left-sided sciatica.

Her GP arranged an MRI, which showed the disc bulge responsible for it. The neurosurgeon advised that she have a microdiscectomy and discussed the pros and cons with her over the phone. The phone call was recorded in the notes, but the details of the conversation weren't, and with her agreement to proceed, the surgeon wrote to her GP about the plan. Directly before the operation, the surgeon had a quick chat with the patient, checking she didn't have any questions.

She signed the consent form, which didn't list any of the risks of surgery, and the operation went ahead without complication. However, two months later, the patient felt her pain was worse, and she now had genital numbness and urinary symptoms. Her urodynamic investigations were normal, but she was numb in the S3 dermatome. -

[Dr. Stacey] Unfortunately, in this case, the patient instructed a solicitor to pursue a claim. The key issue in the claim was the issue of consent, there's always a tension in terms of the consent process, and I say process because it is just that. It doesn't mean just a signature on the bottom of a form, and the tension is that the cornerstone of it is the communication between the patient and those involved in the consent process.

However, if a claim ensues, the defensibility of the claim is usually contingent on what's written in the notes or on the consent form. The patient alleged that the procedure was performed negligently and that she was not warned appropriately, or at all, the procedure could lead to a worsening of her symptoms.

In fact, the allegations that the procedure was performed negligently were not upheld, although it was upheld that she didn't receive an appropriate warning. If the patient had received an appropriate warning and had appropriate time to think about her options, then it may well have been that this case would have been defensible. In the context of the consent process, it's important to inform the patient of all material risks.

What I mean by material risks is to provide them with all the information they would need to make a decision as to whether or not to go ahead with a procedure or treatment. Things to think about are: what are the common risks, what are the rare but high-impact risks, what are the risks that are particularly applicable to that patient, and what's the patient concerned about.

It's also important to ensure that the patient understands the implications of the risk. The key thing in terms of the defensibility of the claim is documenting those risks. Things that might help are: documenting what was discussed in the records, copying any correspondence to the GP to the patient and referencing the risks that were discussed, developing procedure-specific consent forms which document the risks associated with the specific procedure, and developing patient information leaflets, and also ensuring that the patient has both read and understood them.

[Dr. Perrott] This case really highlights the importance of understanding what patients expect from treatment or from their doctor. And it's all very well saying, at the end, when a patient complains, "Well, that was an unrealistic expectation," but as with this patient, she's already gone through the whole process and the complaint has come under your door.

So, Medical Protection believes it is hugely important to elicit expectations early on, and education at Medical Protection has many resources. Our workshop, "Mastering Your Risk," talks you through how to elicit expectations, and our master classes that are specialty-specific, again, gives you the opportunity to practice that with your peers and with professional medical actors because we believe it is so important.

After the claim was investigated by Medical Protection, the case was deemed defensible and taken to trial. The judge concluded there was no negligence during the operation, but consent was inadequate. It highlights the requirement to understand what adequate consent means. Careful documentation of your discussions with patients about consent provides some protection for doctors facing claims and complaints.

In this case, the patient was awarded a moderate sum.