Dr J is a specialist plastic surgeon working in the private sector in the UK. He prides himself on giving patients a full and frank explanation of the likely outcome, potential complications and expected cosmetic appearance of surgery.
So he was surprised to receive a letter of claim from a firm of solicitors, alleging that he had been negligent in giving insufficient information to Mrs D, a 45-year-old social-services senior manager, when he had obtained her consent for an abdominoplasty three years earlier. The letter also alleged that he had delivered substandard care, leaving Mrs D with a litany of complaints including ‘a permanent unsightly abdominal scar’.
Dr J contacted MPS and we asked him to prepare a report on his dealings with the patient.
We obtained advice from an expert plastic surgeon who could find no evidence of negligent treatment. The notes contained a signed consent form, but no details of the specific information that Mrs D had been given. The expert saw this as a potential weakness in defending Dr J. However, the expert also noted that Mrs D was clearly an intelligent and erudite lady.
Given the fact that she had had previous cosmetic surgery, he thought it unlikely that she would have gone ahead with the abdominoplasty without knowing about possible complications and likely outcomes.
An expert engaged by Mrs D’s legal team agreed with Dr J’s surgical treatment and follow up. However, after talking to Mrs D, this expert was concerned at the lack of knowledge she appeared to have on the specifics of the abdominoplasty and its potential complications.
Given the absence of documentation about this in the notes, the expert concluded that Mrs D had not been adequately counselled preoperatively.
Dr J himself recalled a long discussion with Mrs D when he had clearly outlined the risks of infection and other complications. He was certain that he had informed Mrs D what her scar would look like. Mrs D did suffer some postoperative wound infection (relatively common for this procedure), but it was kept under close inspection by Dr J and appropriately treated; this fact was agreed by both experts who saw Mrs D.
Dr J always uses a nurse chaperone when he sees patients, and we obtained reports from his nursing colleagues on the nature of his routine preoperative discussions.
They confirmed that Dr J was ‘consistent and methodical in carrying out consultations, to the point of being pedantic’. They stated that he always discussed the nature and complications of surgery and always physically demonstrated the site and size of any scars, using his finger to draw on the patient’s body.
They confirmed that he gave patients an opportunity to ask questions without fail, and that a 20-minute appointment was allocated for such counselling and questions.
Armed with this information, we went back to Mrs D’s legal team. They had been instructed to pursue the case to trial, but were willing to explore resolution by mediation. At a meeting with Mrs D and her legal representatives, we agreed to refund the fee she had paid to have the surgery, and made a partial contribution to her legal costs.
Expenditure on the case, including MPS’s external legal costs, was a sum equivalent to £14,000. This does not include the cost of MPS staff time in handling the case.
By dint of detective work and the assembling of circumstantial evidence, we managed to keep the cost of this claim to a minimum. If Dr J had made a note of the substance of his discussion with Mrs D we would probably have persuaded her to drop the case at an earlier stage.
Keeping detailed notes is time-consuming, but vital. One way of conserving time is to use patient-information leaflets for a specific procedure, documenting in the notes that you discussed with the patient the risks detailed in the leaflet (with reference number). Make sure that you use accurate, appropriately accredited, peer-reviewed and regularly updated leaflets. And remember to document discussion about any relevant patient-related factors – e.g. occupation/surgical history – which could affect the risks and the desirability of a particular outcome.
‘Dr J’ writes: ‘What really puzzled me about the case was why the patient decided to sue me, three years after an entirely successful operation, having expressed herself quite satisfied at three-month review, with no surprise at the size of her scar.
‘The reason became clear [when I met] her husband. He was a dominant sort of man and it was clear that he had instigated the action. [He insisted that I could not have given his wife a factsheet because] she would have shown it to him and he had not seen one. “If I had,” he said, “There is no way I would have let her have the operation.” All was thus revealed!’