How failing to gain proper, informed consent before spinal surgery can lead to negligence claims

Doctors have a duty to obtain proper, informed consent from you, as their patients. Where, through the doctor’s failure to provide sufficient information, a procedure or treatment is carried out without your informed consent, an action may lie in negligence for breach of duty.
There are two essential elements to such a claim:

  1. The doctor was negligent in the provision of advice and/or information on the proposed treatment; and, 
  2. The negligence has caused you to suffer pain, suffering, loss and damage.

Inherent to this second requirement is that but for the defendant’s negligence, it is unlikely you would have suffered the adverse outcome for which the claim is brought. In other words, if you were given the correct advice, you would not have gone ahead with the procedure at that time and/or not at all. 

How do I give informed consent?

Signing a consent form is not necessarily conclusive on the issue of consent. In cases where the prospective claimant has suffered an adverse consequence following treatment, circumstances surrounding the consent process usually form part of the pre-action investigation, including what was said at the time and by whom.

The Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11 reaffirmed the nature of doctors’ duties in advising and obtaining informed consent to medical treatment.

Mrs Montgomery, diabetic and of small stature, was expecting a child. It was well known at that time that diabetes mellitus in the mother carried a risk of a larger baby. The case therefore concerned the failure in the duty owed by the defendant doctor to Mrs Montgomery to advise of the particular risks of shoulder dystocia if her baby were born by vaginal delivery, and to provide her with alternative options in respect of the delivery of her baby. During the natural delivery, the baby’s shoulders became lodged in the birth canal and as a result the baby boy was starved of oxygen, suffering a brachial plexus injury and later being diagnosed with cerebral palsy.

The Court found, in Mrs Montgomery’s favour, that she should have been advised of the risk of shoulder dystocia, and had she have been, she would have opted to give birth by caesarean section.

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore 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. [87]”

Montgomery reaffirmed three important points: 

  1. The importance of patients’ autonomy.  Patients have the right to be involved in discussions and make informed decisions about their care; as such decisions affect their lives and bodies. It is for the doctor to advise, and the patient to decide.

“A rule requiring a doctor to abstain from performing an operation without the informed consent of a patient serves two purposes. It tends to avoid the occurrence of the particular physical injury the risk of which the patient is not prepared to accept. It also ensures that due respect is given to the autonomy and dignity of each patient. (Chester v Afshar, [18])”

  1. That doctor’s duties extend further than providing their patients with percentages; it involves a dialogue between him and his patient. The information given to patients should reflect: the nature of risk, the likely effect such risk could have on the life of the patient, the benefits of the treatment, any alternative treatments, and the risks associated with those alternative treatments. The doctor’s advisory role will only be performed effectively if the information provided is comprehensible.
     
  2. The test of materiality. The assessment of the materiality of a particular risk is dependent on both the specific facts of the claim and on the individual patient. It is therefore important that a doctor considers what a reasonable person in the patient’s position would be likely to attach significance to, and what that particular patient would want to know about or relating to the proposed procedure. This includes, but isn’t simply confined to, the chances of risks materialising, but also:
  • Advice on alternative (conservative) treatments (Montgomery, Hassell v Hillingdon Hospitals NHS Foundation Trust)
    There will always be alternatives, even if the alternative is no treatment. For instance, In Hassell, there were alternatives in the form of conservative management with painkillers or physiotherapy which the surgeon failed to advise. 
  • Changes to the treatment (Crossman v St George’s Healthcare
    Doctors are under a duty to fully involve patients in decision-making and not make paternalistic decisions without consulting the patient.

In Crossman, the patient suffered from numbness in his arm as well as pain and restriction of movement in his neck. Minor compression of the spinal cord was visible upon an MRI scan. In light of the scan, various options were discussed and the consultant advised conservative treatment, physiotherapy and a review within 3 months. Subsequently, a letter was sent to summon the claimant for operative treatment. The claimant queried this, but complied, as otherwise he would go to bottom of the waiting list. The claimant therefore had the operation and, although it was not performed negligently, suffered nerve damage. It was agreed that the risk of this result was less than 1%, and further agreed that, if the management plan had been followed as intended, the claimant would have had the same surgery 3 month later with the same level of risk. The case is one of very limited cases which have succeeded on ‘but for’ causation, discussed further below in reference to Chester.

  • Who would be operating (Jones v Royal Devon and Exeter NHS Foundation Trust)
    In Jones, the patient was referred to a particular consultant for her back pain. However, when she later underwent bilateral decompression surgery it was performed by a different surgeon. As a result of the surgery, she suffered a dural tear and damage to the nerve roots in the cauda equina. This was a recognised risk of the operation and was not in itself negligent; however, she succeeded in her claim on the basis that she had not consented to the operation being performed by the particular surgeon that performed it. 
  • The timing of the advice (Thefaut v Johnson; Hassell v Hillingdon)
    There must be adequate time and space for there to be a reasonable dialogue between doctor and patient, and time for the patient to consider the options and advice. This is not satisfied by a short telephone call, nor is it appropriate to give new information to the patient on the morning of the surgery (save if it is an emergency).
    In Hassell, the patient was asked to sign a consent form just as she was taken into surgery. Although the consent form warned of the risk of spinal cord surgery (which the experts agreed was sufficient warning of the risk of paralysis), it was given first a few moments before surgery and did not allow the patient an opportunity to reflect.

The ‘therapeutic exception’ is maintained. If a doctor reasonably considered that the disclosure would be seriously detrimental to the patient’s health, they are entitled to withhold information.

In addition to expert evidence, the claimant’s own factual evidence of his/her personal circumstances and evaluation of the nature, magnitude and potential consequences of the relevant risk, are likely to play an important part in whether or not the defendant’s failure to provide information amounts to a breach of duty. 

What will help my claim to succeed?

An essential part of any claim in negligence is to satisfy causation in both fact and in law. The considerations are two-fold: 

  • Whether the defendant’s conduct actually made a difference in reality, usually through the ‘but for’ test: but for the defendant’s negligence, would the claimant have suffered loss or injury? 
  • Whether any such difference is fairly attributable to the defendant, usually through ‘reasonable foreseeability’ considerations. 

In consent cases, what is often crucial in establishing causation is the claimant’s factual evidence as to the decision they would have made had they received proper advice.

However, the decision in Chester v Afshar [2005] 1 AC 134 infamously represents a “departure from traditional causation principles” (Chester, [24]). 

The case concerns a neurosurgeon’s failure to warn the claimant of a small but unavoidable risk of surgery. The 1-2% risk was neither created nor increased by the defendant’s failure to warn. Although the surgery was performed competently, the risk eventuated, and the claimant suffered nerve damage.

The claimant established at trial that, had she been properly advised, she would not have had the same surgery on the day itself, but neither did she allege that she would never have had the surgery at all. Accordingly, the court proceeded on the basis that she would have had the same surgery at an unknown later time. While the risks might have been the same in any future operation, the likelihood of that risk materialising was not the same; it was more likely than not that the same damage would not have been suffered by the claimant at a later date. 

The claim would have failed on traditional causation principles, establishing factual causation but failing to show legal causation. In Duce v Worcestershire Acute Hospitals NHS Trust, Hamblen LJ explained this as follows: 

“That modification was to treat a “but for” cause that was not an effective cause as a sufficient cause in law in the “unusual” circumstances of the case. [66]”

In allowing the claim on policy grounds, the House of Lords emphasised how the duty of a surgeon to warn of the dangers inherent in an operation is intended to minimise the risk to the patient and enable them to make an informed choice whether to undergo the treatment, at whose hands, and when. On the facts, the surgeon’s failure to do violated the claimant’s right to choose for herself, even if he did not increase the risk to her. 

The function of the law was to enable rights to be vindicated and to provide remedies when duties have been breach. Unless that was done in the instant case the duty to warn would be a hollow one. On policy grounds the test of causation was satisfied in the instant case. The risk that eventuated was within the scope of the duty to warn so that the injury could be regarded as having been caused, in the legal sense, by the breach of that duty.

In subsequent cases, the Court of Appeal has consistently confined it to its own facts, declining attempts to extend it to further factual scenarios.

In summary, recent case-law tells us… 

  • A negligent non-disclosure of information by the doctor cannot of itself create a free-standing claim (Diamond v Royal Devon & Exeter NHS Foundation).
  • The principle in Chester is a narrow decision with little application to further cases. It can only apply where a claimant proves only that, if advised correctly, they would have undergone the treatment complained of but at a later time, with an identical risk of harm. 
  • Where a claimant would have had the treatment at the same time, Duce confirms the claim would fail. 
  • If the claimant would not have had the treatment at all, then causation succeeds on conventional principles, as in Montgomery.

The duty to warn only extends to material risks.

There must be a close nexus in fact between the initial wrongful advice and the ultimate injury.
If the claimant would have suffered the injury in any event, or if there was a break in the chain of causation, the claim will fail.

How can Boyes Turner help?

Spinal injuries have a devastating effect on lives. A significant period of readjustment and support is required to adapt to the life changing event. At a distressing time, our specialist spinal injury lawyers can offer straightforward and clear advice and assistance. There is no cost to our clients, should the claim be unsuccessful, and our approach is to work with our client and their family as necessary to ensure maximum compensation to help rebuild their lives.

If you have suffered a spinal injury and would like to enquire if you have a claim, you can contact our team at mednegclaims@boyesturner.com.

The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

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