Mrs E, a 50-year-old interpreter and translator, had suffered several bouts of acute upper abdominal discomfort, after eating fatty foods. Her GP, Dr S, referred her to Mr N, consultant general surgeon. Mr N felt that the episodes of pain were due to gallstones, which were confirmed on abdominal ultrasound. Mr N recommended a laparoscopic cholecystectomy.
Mrs E had the elective procedure and her pre-, intra- and immediate post-operative course seemed normal. However, early on the second post-operative day, she became unwell and spiked a high temperature. Her bilirubin levels were elevated. Mr N felt that there must have been intra-operative damage to the common bile duct. Mrs E was taken back to theatre for laparotomy and repair of the common bile duct which was carried out without complications. Mrs E made a good recovery and was discharged a week later.
Mrs E started a claim against Mr N alleging negligence in damaging the common bile duct during laparoscopic surgery, and a failure to warn her of this potential complication.
Initial opinion was that there was no evidence of negligence on Mr N’s part in terms of the way he had conducted the surgery or in recognising and treating the complication suffered by Mrs E.
Unfortunately, there were two areas of concern that meant that ultimately this case could not be defended. Firstly, although Mrs E had signed a consent form for the operation, the section on complications had not been completed. This made it difficult to refute her claim that she had not been warned of possible damage to the common bile duct.
Secondly, the operation note had been altered subsequently by Mr N, to clarify intra-operative technique, in view of the complication sustained. Unfortunately Mr N had not made it clear that he had added to the clinical record after the event. In view of these problems in defending the case, it was settled for a moderate sum.
- When obtaining consent it is vital that there is a record of what was discussed with the patient, particularly when informing them of the nature and likelihood of recognised complications. This can be achieved either by a separate note in the clinical record or by better use of the consent form, supported by patient information. It is then clear what has been explained to the patient, and that they are aware of the risks of the procedure.
- The clinical record should be contemporaneous. Any attempt to retrospectively alter it will render it largely useless in terms of defending your actions in the event of a complication or adverse event. It is acceptable to add a retrospective note clarifying or correcting something that may be relevant, but it must be clear that this observation has been added after the event by signing and dating it. Indeed, if there is an adverse incident, it is a good idea to write a narrative account of the incident, again, signed and dated, while memories are fresh.
- See the following paper highlighting problem areas in obtaining consent for laparoscopic cholecystectomy, which advocates the use of preprinted consent forms. Chen A et al, Variations in Consenting practice for Laparoscopic Cholecystectomy. Ann R Coll Surg Engl; 88(5): 482–5 (2006).