Court dismisses patient’s claim she did not consent to registrar performing surgery

The skills and experience of the doctor performing a procedure may be material to the patient. As part of the consent process, patients need to understand the specific procedure they are consenting to and whether that procedure may be performed by another doctor.

Ms T received surgery to repair an incisional hernia as a public patient in a regional base hospital.

After the surgery she returned to the hospital several times for recurrent infection at the surgical site – ultimately requiring urgent surgery for a severe infection. The hospital accepted that the infection was associated with the surgical mesh used in the surgery.

Ms T sued the hospital for negligence and battery. In this context battery means performing a procedure or physical contact without the patient’s consent.  

Consent to who performs the procedure

Ms T had consulted the senior surgeon (Dr S) and claimed she had never given valid consent to the surgical registrar (Dr R) performing her procedure.

The court accepted the skills and experience of the person performing a procedure could be material to the patient and were relevant to the legal question of whether a patient had been fully informed of the risks of the procedure.

However, for Ms T’s claim of battery to succeed, she would need to show that she had not understood or consented to the nature and character of the surgery to be performed. The court considered whether this included being mistaken about the identity of who would perform the surgery.

Ultimately, it found the identity of the person performing the surgery was not part of considerations about the nature or quality of the procedure. Rather, the skills and experience of the surgeon may go to issues of negligence. In this context, the court noted that the other person performing the procedure was a legally qualified medical practitioner undergoing specialist surgical training who would be working under the direct supervision of the consultant surgeon. It found that the registrar performing the surgery did not alter the nature and character of the surgery.

In any event, the court also found that Ms T had consented to the surgery being carried out by someone other than Dr S.    

It was not in dispute that Ms T had read and signed the hospital’s standard consent form. This contained the line ‘I have been told that the procedure/treatment may be performed by another doctor’. Ms T agreed she had read the form ‘fairly closely’ before signing it.

Dr S gave evidence that his standard practice was to inform patients that in the public hospital, registrars are required to perform operations on public patients and that the consultant surgeon will not always personally perform the operation. Ms T denied receiving this information but the court found on the balance of probabilities that Dr S’s usual practice was followed.

The court accepted that both Dr S and Dr R had been scrubbed in for the surgery and that while Dr R performed the repair, Dr S provided close supervision and assistance.

The court was satisfied that the operation was performed by both doctors. It found that Ms T had consented to the procedure and that consent extended to Dr R’s involvement as the primary surgeon with the supervision and assistance of Dr S.

The claim in battery was dismissed.

The case separately involved issues of negligence regarding whether negative pressure surgical drains should have been used, as well as the management of Ms T’s post-surgical infection. These were found to be below the standard of care expected and the case regarding negligence succeeded against the hospital.

Damages of $1,005,509 were awarded including amounts for non-economic loss as well as past and future out of pocket expenses, economic loss and domestic assistance.

Except in cases of life-threatening emergency, you must obtain a patient’s consent to a specific procedure. Performing a procedure of a different nature or character than the one to which the patient consented could constitute battery.

As part of the consent procedure, make sure patients are advised if the procedure may be performed by another doctor and document this discussion in the consent form or elsewhere in the clinical notes.

You are expected to disclose both risks that a reasonable person in the patient’s position would be likely to consider significant, or risks that you know or ought reasonably to know would be significant to the specific patient.

The relative experience and skill of the surgeon performing a particular procedure may be material to the patient and you should always be prepared to discuss this with the patient. This includes raising with the patient if a registrar or trainee will be performing the procedure under supervision. This might be routine in public hospitals or part of a more individual process in other settings.

Avant factsheet - Consent: the essentials

Avant podcast - Issues of patient consent