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Case raises surgeon’s duty to warn of surgical risks versus conservative treatment

Mar 23, 2018

A recently reported Supreme Court case has raised the scope of a doctor’s duty to warn of the risks of surgery versus conservative treatment, and lack of training and experience in performing the procedure.

The case turned on whether the neurosurgeon had given the patient all the relevant information to decide whether to undergo surgery to remove a brain tumour after which they suffered catastrophic complications.

Expert evidence concluded the surgeon should not have recommended any surgery compared with conservative treatment. They also agreed the surgeon probably did not have the experience to perform the surgery and failed to inform the patient of his lack of experience and training in the procedure.

Ultimately, the surgeon was found to be in breach of his duty of care to the patient.

The consultation

A patient in his early 70’s, who was otherwise fit and active, saw his GP for persisting headaches. A subsequent CT scan revealed a meningioma on the floor of the anterior cranial fossa with oedema.

The GP referred the patient to the surgeon. At the consultation with the patient and his wife, the surgeon considered the scans and measured the tumour at 3.5 cm. It was agreed two courses of treatment were available including surgical removal of the tumour or conservative treatment involving regular monitoring of the tumour.

Subject to an ENT specialist’s assessment, the surgeon recommended removing the tumour endoscopically, through the nasal passage. The surgeon had not previously performed this procedure, although he had performed other endoscopic procedures.

The surgeon provided a document explaining craniotomy surgery and its risks. However, the document did not reference the endoscopic procedure.

Catastrophic complications

A few weeks later, the surgeon removed the tumour endoscopically. Shortly after the surgery, the patient suffered a brain haemorrhage. He was hospitalised for many months and underwent a series of surgeries.

The patient was eventually discharged home and now requires significant assistance.

Negligence issues

The patient’s wife and a relative sued the surgeon for negligence regarding failure to warn of the risks of surgery including brain damage, stroke and death, compared with conservative treatment and his lack of training and experience in performing the surgery.

The issues included:

  1. The nature and extent of any risk warnings provided by the surgeon
  2. The nature and extent of any alternative treatment options discussed or recommended by the surgeon
  3. Whether the surgeon was appropriately trained and experienced to perform the surgery
  4. Whether the surgeon ought to have recommended the proposed surgery
  5. Whether the surgeon ought to have performed the surgery
  6. Whether the surgeon ought to have recommended other forms of treatment.

A case brought against the ENT surgeon was not pursued.

Case turns on scope of surgeon’s duty

In assessing whether the patient had been given all the relevant information to decide whether to undergo surgery, the court noted the decision enshrined in Rogers v Whitaker1. This recognises that a doctor has a duty to warn a patient of the material risks inherent in the proposed treatment if a patient, if warned of the risk, is likely to attach significance to it.

As the surgeon had a limited recollection of the consultation, he relied on his usual practice. Ultimately, the court preferred the patient’s wife’s evidence over the surgeons about the advice given. This led the patient and his wife to believe the preferable option was surgical removal of the tumour endoscopically to prevent the patient’s headaches, which the oedema was likely causing, and to avoid the risk of stroke and dementia.

Surgery should not have been recommended

The court accepted expert opinion that the surgeon should not have recommended any surgery and should have informed the patient that the surgery might not cure his headaches.

While the experts agreed surgery was a reasonable option in the patient’s case, they considered it unreasonable that the surgeon had presented the conservative option of monitoring and observation, as a poor option.

The experts also agreed the tumour was not life-threatening and that is why conservative treatment is often recommended in such cases. However, they agreed the presence of oedema impacted the interval period for initial surveillance, to ensure early or rapid growth was not present.

Lack of necessary training or experience

Expert opinion concluded the surgeon probably did not have the experience to perform the surgery. He was not fellowship trained in endoscopic skull-based surgery; he had not observed that type of surgery live; nor had he performed a number of cases of intermediate complexity, other than pituitary surgery.

The experts also agreed he should have disclosed his lack of experience in performing the surgery to the patient and advised the surgery carried a 5 to 10% risk of causing the catastrophic complications the patient suffered.

‘[The patient’s] complications were recognised complications of that procedure, which the experts agreed occur less frequently with experienced surgeons,” the court noted.

Despite the surgeon’s evidence to the contrary, the court noted he had not referred to disclosing his inexperience in performing the procedure in his statement and only claimed this under cross-examination.

Ultimately, the surgeon accepted that it would have been improper not to have disclosed that he had not performed the surgery before.

The court found the surgeon had not disclosed his lack of experience with the procedure.

The decision

In handing down the decision, the court noted the surgeon conceded he had a preference for surgery, given his concern that oedema was causing the patient’s headache and the risk of tumour growth.

“The result was that [the patient] pursued a surgical procedure which [the surgeon] had neither prior experience of, or training in, when the better course would have been to wait and monitor the progress of the tumour,” the court concluded.

"Had [the patient] received that advice, or even information about the risks of the surgery when compared with the risks involved in monitoring the tumour, it is quite unlikely that [the patient] would have had surgery,” the court said.

The court found the surgeon had breached his duty to the patient, not only in failing to inform him of his lack of experience and training in the procedure, but also in performing the procedure.

On the issue of causation, the court considered what the patient would have done had he been properly advised of four matters: his headaches may not be cured by surgery; the relative risks of the two available options; that the surgeon was not qualified to perform the surgery; and conservative management should have been pursued in the first instance.

The court concluded that had the patient been advised of these matters, he would have been referred to a surgeon qualified to perform the surgery and received advice in line with the experts’ evidence.

“Having received that advice, given the relative risks of the recommended procedure, as opposed to conservative treatment, in the first instance, [the patient] would not have pursued surgery,” the court said.

“If surgery proved to be necessary later after conservative treatment, because of tumour growth or of the consequences of increased oedema, in the hands of an experienced and trained surgeon his risk of suffering the complications of the surgery which materialised… would have been considerably less. In fact, those complications might not have materialised at all,” the court found.

Damages awarded in favour of the patient were agreed.

Key lessons


  • Inform patients of all the treatment options available, including the high risk nature of any surgery.
  • Ensure your expertise is appropriate for the surgery being undertaken. If you lack experience and training in the procedure, you have a duty to inform the patient.
  • Keep accurate, contemporaneous medical records of the discussion and document patient consent and any written information you have handed out. For further information see Consent essentials and Gaining patient consent.

More information

Our Medico-legal risk and your practice: Checklist for Surgeons will help you identify and manage areas of risks in your practice.

If you are subject to a complaint, visit our website or call our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.

Reference

Rogers v Whitaker[1992] HCA58; (1992) 175 CLR 479

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