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Consent not given for nephrectomy

01 May 2006

Mrs E, a secretary in her forties, had been diagnosed with cystinuria in childhood. As a teenager, she briefly took penicillamine but stopped due to its side effects. She subsequently underwent a series of open and endoscopic procedures to remove stones from her left kidney and ureter. In adult life, Mrs E continued to pass multiple stones spontaneously, forming a new stone approximately every eight weeks.

Mrs E consulted a urologist, Dr C, following a bout of renal colic. An intravenous pyelogram (IVP) demonstrated a large radiolucent stone in the left renal pelvis. Dr C explained to Mrs E that the stone would not be suitable for extracorporeal shockwave lithotripsy (ESWL) as it was made of cystine and the lithotriptors available locally were not capable of treating it. Dr C advised nephrolithotomy instead.

Dr C then undertook a surgical exploration of Mrs E’s left kidney. He found the kidney to be small and contracted. On removal of the calculus, he found it was not possible to surgically reconstitute the kidney.

In addition, the ureter had been damaged during the dissection and the distal portion was not suitable for surgical anastomosis. Dr C therefore decided to carry out a nephrectomy.

Mrs E subsequently sued Dr C for negligence. She claimed she had not given consent for a nephrectomy to be performed and she had not received an explanation from Dr C as to why it was necessary.

Mrs E alleged that Dr C never visited her postoperatively and that another member of staff had informed her that she had undergone nephrectomy. Dr C claimed that he had visited Mrs E during the immediate postoperative period but conceded that she may not have recalled this due to the effect of her general anaesthetic.

Dr C said that, in his opinion, nephrectomy was indicated at the time of surgery as leaving the kidney in situ could have led to complications such as urinary fistula, urinoma and abscess. Such complications would have necessitated further surgery and resulted in considerable morbidity for Mrs E. He also said that postoperative care of patients was routinely taken over by staff at the hospital Mrs E had attended. His rooms were situated not very far from the hospital and he was easily contactable in case of any postoperative problem.

Expert opinion

A urology expert felt that the case raised two important issues. The first was the role of nephrectomy in the management of cystinuria. He felt that nephrectomy was necessary only as a last resort and in the presence of obstruction and infection. He pointed out that medical treatment may also have been used to dissolve cystine stones and that this treatment was not offered to Mrs E.

The second issue was the lack of informed consent and postoperative explanation. At no time was Mrs E told that nephrectomy was a possibility, nor given any explanation as to why it was performed.

A second urology expert felt that treatment should have been the least invasive possible. Open surgery should only have been performed if other treatment modalities had failed or if there were anatomical abnormalities present. Mrs E should have been warned about the possibility of nephrectomy, particularly as she had undergone previous surgery.

The case could not be defended and was settled out of court for the equivalent of £28,000 plus costs.

Learning points

  • Clinicians should always obtain informed consent, communicate effectively and visit patients at an appropriate time in the postoperative period.      
  • Performing an operative procedure without informed consent is regarded as assault in several countries. Preoperatively, the surgeon must inform the patient of the material risks of the procedure, alternative treatments available, including no treatment, and any potential complications.

Further information

Department of Health guidance on consent is available at www.dh.gov.uk

A detailed review covering the diagnosis, investigation and management of cystinuria is available at www.emedicine.com.

Guidelines for the management of renal and ureteric calculi of all types are available at www.auanet.org.

MPS produces a medicolegal factsheet on consent which can be found in the "Casebook and resources" section of the website.

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