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No consent, no defence

01 May 2004

Mr B, a banker in his thirties, had a hiatus hernia; he suffered from chronic heartburn, which had not been alleviated either by ranitidine or a hiatus-hernia repair. In the early 1990s, his GP referred him to Mr M, consultant general surgeon, for gastroscopy.

The gastroscopy showed a large hiatus hernia, signs of Grade I reflux oesophagitis and superficial duodenal ulceration. Mr M advised (and Mr B agreed to) surgical repair of the hernia with Nissen fundoplication. Mr M experienced some difficulties during surgery.

He had used a transabdominal approach, but encountered thick adhesions, which hampered mobilisation and forced him to modify the procedure. During surgery he perforated Mr B’s oesophagus, which he repaired with vicryl sutures.

Two days postoperatively, a chest x-ray showed a right pneumothorax with effusion; an intercostal chest drain was inserted, draining 1500 ml of fluid. On day six, Mr B was transferred to the intensive therapy unit. A second intercostal drain was inserted, and a contrast study showed evidence of oesophageal leakage. Mr B progressed reasonably well with conservative management.

Almost a month after the operation, a further gastrografin swallow confirmed that the oesophageal tear had healed, but it was necessary to perform a decortication of the right lung a week later.

Following his recovery, Mr B launched a legal claim against Mr M, alleging that lacerating the oesophagus had been negligent and that he had been given inadequate postoperative care.

Expert opinion

We sought expert surgical advice. The indications for surgery and the transabdominal approach were deemed to be reasonable. It was accepted that oesophageal tear was a recognised complication of the procedure and not, in this case, negligent. The postoperative care and management of the complication were also judged to be adequate.

However, there was no evidence that Mr M had obtained Mr B’s informed consent, nor was there a record of the preoperative consultation. The expert noted, ‘The failure to obtain a degree of informed consent... is viewed as a grave omission and I am therefore of the opinion that a settlement should be sought.’ We took the expert’s advice and settled the case for the equivalent of just under £10,000.

Learning point

Failing to obtain adequate, informed consent for any procedure leaves doctors vulnerable to legal claims and complaints. A complete lack of consent or its documentation, in the event of a complication or claim, means that defence is impossible and liability for injury may have to be assumed, even where expert advice is supportive if the treatment given.

In some jurisdictions, failure to obtain consent could have consequences under the criminal law.