Gynaecologist's performing laparotomy instead of laparoscopy was both negligence and trespass

Key messages from the case

When obtaining effective informed consent it is important for the doctor and patient to have a shared understanding of the planned procedure. This includes where there are multiple possible approaches to treatment or terminology may be unclear. Performing a procedure without specific consent for that procedure may be an assault as well as negligence, as this case highlights.

Details of the decision

Informed consent – consent to procedure

Ms C underwent a laparotomy with tubal ligation. She believed she had consented to a laparoscopic tubal ligation and claimed the laparotomy was performed without her consent. Instead of undergoing a day procedure, she was required to stay longer in hospital. Ms C said she was unable to resume her normal life and responsibilities for a number of weeks, and experienced a post-operative infection, scarring, continual abdominal cramps and pain as a result of the procedure.

Ms C and the clinical staff had different recollections of events. Ultimately the court accepted Ms C’s evidence as more likely to be correct, given it was an ‘isolated and important conversation’ for her, whereas the nurse and doctors had subsequently been involved in multiple similar procedures.

The initial consent discussion was conducted with one of the hospital doctors, some months before the procedure. Ms C’s evidence was that the surgeon who performed the procedure was not present at that time, and the court accepted this. From that conversation, Ms C understood the procedure would be via keyhole incision and that her abdomen would be inflated with gas to enable the tubal ligation. She gave evidence that she was never advised about the possibility that the laparoscopic procedure might not work because of any difficulty inflating her abdomen.  

Ms C signed a form consenting to tubal ligation. The consent also covered “further alternative operative measures” found to be urgently necessary during the procedure. The surgeon, Dr M, considered this to refer to a laparotomy.

When Dr M spoke to Ms C immediately before surgery, it became clear that she was expecting a laparoscopic procedure. Dr M said this was not the procedure on the consent form. They discussed the difference between tubal ligation and laparoscopic ligation with Ms C and she confirmed she wanted a laparoscopic procedure. Dr M amended the form by crossing out the reference to “tubal ligation” and replacing it with “lap. tubal sterilisation”, and Ms C signed the amended form.

When Dr M was unable to inflate Ms C’s abdomen to perform the laparoscopy (due to the Verres needle being too short to penetrate the layer of abdominal subcutaneous fat), he performed a laparotomy instead, believing he had the patient’s consent.

The court found there were different understandings of the terminology used. While Dr M did not use the term “tubal ligation” to include laparoscopic surgery, the court accepted that Ms C believed at all times that she was to undergo a laparoscopic procedure and had not consented to a more invasive procedure, except if there was a life-threatening emergency. The surgery should have been terminated when it became clear it could not be completed, and the difficulty explained to Ms C.

The court accepted Ms C had no expectation of a longer stay in hospital or longer recovery period.

The court also found that the treating team should have discussed the risk of a potential problem with the introduction of gas to the abdominal cavity during the initial consent process – not on the day of the surgery. That would have enabled her to make an informed decision. She could have attempted to lose weight to enable the laparoscopy, or decided to proceed with the understanding that she would be at a higher risk of needing a laparotomy and made plans accordingly.

Medical records – documenting consent

The consent form Ms C signed showed a note in Dr M’s handwriting striking through ‘tubal ligation’ and adding ‘lap. tubal sterilisation’. It indicated ‘matter explained, she agreed’

While Dr M believed he had discussed the possibility of complications, he had no independent recollection at the time of the hearing of when he amended the form or what was explained to Ms C.

Communication and consent

The court found that it was likely that Ms C did not entirely understand what Dr M was saying to her in the conversation immediately before the operation about the procedure to be performed.

Ms C gave evidence that after the procedure she told Dr M she was not very well and asked what had happened. Dr M advised that they had been unable to inflate her abdomen ‘probably because there was too much fat, so we just did that because you were in here to get your tubes done.’

In court Ms C noted her shock and anger at Dr M’s manner. She said she could not believe that Dr M had taken that decision upon themselves to perform a laparotomy. She believed she had consented to laparoscopic surgery and not to laparotomy.   

Outcome

The court found that Ms C had not consented to a laparotomy, other than if there was a life-threatening emergency. Therefore, she succeeded in her claims in negligence and trespass to the person (assault).

She was awarded damages for pain and suffering, interference with enjoyment of life and disfigurement. The court reduced the amount of damages, to take into account the possibility Ms C may have ultimately needed a laparotomy procedure in any event.

Key lessons

Except in cases of life-threatening emergency, you must obtain a patient’s consent to a specific procedure.

As the doctor performing the procedure, you can delegate the consent discussion, however you need to satisfy yourself that the patient has received enough information to make an informed decision. Whoever has the discussion must use clear language and terminology that the patient can understand.

Obtaining informed consent for treatment includes discussing material risks and benefits of the treatment, including potential adverse effects, common outcomes and side effects, and likely recovery process. Ensure you also discuss alternatives, for example alternative approaches to the procedure, and the option of doing nothing where appropriate.

Patients need enough information to determine which treatment options best suit their situation. Non-clinical issues may be material to their decision, including their commitments and responsibilities, and ability to manage their recovery.

Try to understand what the patient was expecting and if unsure, ask. You will then be better prepared to manage any unmet expectations and avoid miscommunications.

Always communicate respectfully and with care and tact. This allows discussion of sensitive issues honestly and carries less risk of causing offence or distress.

When documenting the consent discussion, clearly document the information you provided, your discussion about risks and outcomes material to the patient’s circumstances, alternative procedures explored, issues or concerns raised by the patient and your responses. This is important for the patient’s ongoing clinical care and if questions are raised about the care provided.

References and further reading

Avant factsheet – Consent: the essentials

Avant factsheet - Open disclosure: responding when things go wrong

Avant eLearning – Communication in clinical practice