Lack Of Informed Consent Leads To Tragic Medical Negligence Claim


The Law Of… Gaining Informed Consent

The case of a young person who underwent 'curative surgery' proved to be an ultimately tragic one, when the resulting condition drove them to take their own life. David Thomas, a Medical Negligence Partner at Simpson Millar, handled the claim on behalf of the client's estate. Here, he recounts the inside story of how justice in the face of tragedy was eventually done.

Following the diagnosis of a hiatus hernia, the symptoms of which can be managed with a lifelong course of medication, the claimant in this case was presented with the option of a surgical procedure to remedy the condition. Patient A, as the client will be referred to hereafter, had also suffered persistently from acid reflux, a problem the proposed operation was also due to resolve.

A Lack Of Informed Consent

Patient A was made aware of the hernia treatments available during a clinical appointment with a surgeon, who discussed the choice of keyhole surgery in the form of a Nissen Fundoplication. This was weighed against the option of lifelong medication, which, Patient A was told, compared to the curative procedure might lead to a multitude of unfavourable side effects.

It was alleged that Patient A was never fully informed of the material risks associated with the proposed fundoplication, particularly with regards to a condition known as gastroparesis, a chronic disorder that affects the stomach's ability to empty itself in the normal way.

What Is Informed Consent?

When discussing available treatments for a particular condition, the healthcare professional (doctor, surgeon etc.) must obtain informed consent from you for whichever option is decided upon. This means that the risks, as well as the benefits, of the treatment have to be conveyed clearly, so you are fully aware of any potential dangers before making a decision.

Failure to adequately make you aware of the material risks involved in a suggested  treatment, or of any reasonable alternatives (including doing nothing), means you are not giving informed consent to the procedure or treatment. If you subsequently suffer harm as a result of those risks, there is a strong case for negligence against the surgeon and/or hospital NHS Trust responsible

Negligent Surgery

Not fully aware of the potential harm the surgery could cause, Patient A agreed to undergo the Nissen Fundoplication and the procedure went ahead.

Following the treatment, it soon became apparent that the operation hadn't gone as planned. The acid reflux had been cured, only to be replaced by far more debilitating issues. These included chronic vomiting, abdominal pain, fatigue, weakness and an inability to work or sleep.

The records pertaining to Patient A's surgery confirmed the worst. During the procedure the surgeon had cut too deep into the oesophagus, an error that damaged the vagus nerve. This, in turn, resulted in gastroparesis, the root cause of the horrific problems Patient A had to endure. A redo fundoplication procedure was advised, but 4 operations later, the symptoms had worsened.

The hospital NHS Trust strenuously denied all liability for Patient A's injury and refused to make any offers. All the time, Patient A maintained that had the risks of the condition and its consequences been communicated to them, they would have declined the procedure and settled for a lifetime of medication.

Tragic Outcome

Following 4 years of the severest symptoms, during which time they lost five and a half stone due to their inability to consume solids, Patient A, a single adult still in their 30s, tragically took their own life.

Even then, the hospital Trust continued to deny any liability and the deceased’s parents had to continue the fight in order to obtain justice for their child. Further representations were made to the hospital Trust's lawyers by David Thomas, our specialist Clinical Negligence lawyer, who represented Patient A and the estate, and when the Trust realised that the case would go to trial, the claim was finally settled. The estate received a sum of £65,000 in full and final settlement.

David comments:

"A thoroughly tragic case, this demonstrates what can ultimately happen when negligence occurs. Both the initial consultation and the actual procedure were shown to be poorly handled, resulting in a chain of events that had such dire consequences."

"The case underlines how important it is for patients to be given the full facts when faced with often difficult decisions over the treatment they are offered. Without the full facts the patient is putting themselves at risk, without being given the opportunity to decide whether to take that risk or not."

"When those risks become a reality, we see situations arise like the one that occurred here."

"Informed consent is critical and had Patient A been properly warned of the possible complications and consequences of the fundoplication, then the negligent surgery would never have taken place. That would have prevented 4 avoidable years of suffering and the eventual upsetting outcome."

If you have suffered as a result of medical negligence, or you did not give informed consent for a treatment that has resulted in injury, you should seek expert medical advice. Contact Simpson Millar's specialist medical negligence team today.

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