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Who decides?

01 May 2009

Mrs F, a 31-year-old part-time shop assistant and mother of two young children, had been suffering from lower abdominal pain for some time. She was referred by her GP to Mr Q, a consultant gynaecologist, following an ultrasound scan that showed a cyst in her left ovary.

Mr Q saw Mrs F in his outpatient clinic to discuss treatment options. He advised an oophorectomy and Mrs F agreed to this course of action. Two months later, she was admitted to hospital prior to surgery and consent for a left oophorectomy was taken by Dr Y, a trainee doctor specialising in gynaecology.

Mr Q carried out the surgery, removing the left ovary without encountering any problems. Then, noticing that the right ovary was trapped and adherent to the rectum and the pelvic wall, he decided that it should also be removed. He did so and informed Mrs F the next day when he visited her on the ward.

Mrs F did not seem to be unduly concerned at this news and accepted it with equanimity. Five months later, however, she started to experience severe menopausal symptoms, including joint pains, forgetfulness, depression and urinary stress incontinence. HRT and a course of antidepressants helped to alleviate some of the worst effects, but she never returned to her "preoperative self”.

About 18 months after the surgery, Mrs F brought a claim against Mr Q, alleging that he had removed her right ovary without proper consent.

Expert opinion

When he met with MPS experts and legal advisers, Mr Q described the substance of the conversation he had with Mrs F at her first consultation. He said that he always told women contemplating a unilateral oophorectomy that there was a possibility that a pathology found in the other ovary might require its removal during the surgery.

Unfortunately, he had documented nothing about his discussion with Mrs F, so his recollections could not be substantiated. Additionally, Dr Y had not mentioned removal of the right ovary as a possible risk of the surgery when he took her consent.

Commenting on Mr Q’s decision to remove Mrs F’s right ovary, one expert considered that this was not indicated. There was no evidence that the adhesions were causing Mrs F any difficulties or discomfort and therefore no justification for removing a presumably functioning ovary.

Given the situation outlined above, it was concluded that the case could not be defended and an out-of-court settlement was sought. The claim was eventually settled for a high sum.

Learning points

  • When dealing with unexpected findings during surgery, you should confine yourself to carrying out the procedure for which you have consent, unless you are confronted with a life-threatening complication that needs urgent intervention. 
  • It is essential to document the substance of preoperative discussions with a patient, otherwise it is difficult to prove that such discussions took place. Good documentation is good practice and the basis for your defence.
  • Pre-printed consent forms can be useful for helping to explain the risks and benefits of a procedure, but they should never be used as a substitute for one-to-one communication.
  • The days when patients were asked to give surgeons carte blanche to perform “any other procedure considered necessary” are long gone. The decision-maker, except in an emergency, should always be the patient rather than the doctor.