Surgeon’s failure to disclose their inexperience with a high-risk procedure is a breach of duty of care

Key messages from the case

Doctors will often have their own views about the preferred treatment option for a patient, but it is always important to present the alternatives fairly and be clear about their relative risks.

A doctor’s experience in or skill performing a particular procedure may affect the relative risk of the procedure and is likely to be important to a patient. Always be prepared to discuss this with the patient. Failing to disclose relative lack of experience or skill may be negligent as this case illustrates.

Details of the decision

J, aged 73, was diagnosed with a brain tumour (meningioma) after complaining of unusual headaches.

At the time they consulted neurosurgeon, Dr D, the headaches were persistent, but they were not interfering with their normal activities.

Dr D preferred surgery over conservative treatment and proposed endoscopic surgery to remove the tumour through J’s nasal passage. Dr D had never performed the procedure transphenoidally before, nor had training nor observed the procedure. The hospital needed to acquire the equipment to perform the surgery.

Shortly after the surgery, J suffered a brain haemorrhage. After 10 further surgeries and months of hospitalisation, J was left with brain injuries that meant they were unable to care for themself and required ongoing monitoring to ensure their safety.

Consent – presenting alternative treatments

J’s spouse gave evidence that after the consent discussion with Dr D, they believed that without surgery J risked stroke or dementia. They did not understand conservative management was an option.

J’s spouse denied they had been advised that the surgery involved risks including that it may not remove all the tumour, that J may need further surgery or that they could experience brain damage, stroke and damage to blood vessels, affected memory, seizures, infection, heart problems, pneumonia or death.

The printed material Dr D supplied discussed the risks of craniotomy surgery, but made no mention of endoscopy. J’s spouse had not understood that the risks of endoscopy were essentially the same as craniotomy. They believed Dr D had advised that everything would be ok and J would be up in a few days.

Dr D’s notes did not mention any consideration of or advice given about conservative treatment.

In court, the medical experts considered the surgery carried a 5-10% risk of the complications J suffered. They agreed that surgery and conservative treatment were both options for a consenting patient with J’s condition. However, in this case, further investigation was needed. There was no immediate urgency to perform the surgery as there was no appreciable risk of J suffering dementia or a stroke within the next six months. It was unreasonable for Dr D to have presented a conservative approach as a poor option.

Consent – duty to disclose experience

The experts also agreed Dr D needed to disclose that this was the first time they would be performing the surgery.

In court, the medical experts agreed the complications J experienced were recognised complications of the procedure, but they occurred less frequently with experienced surgeons.

Dr D’s lack of experience was a risk J needed to be aware of.

Conduct of surgery – duty of care

J claimed Dr D had also been negligent in undertaking a surgery they lacked the experience to perform.

Based on the expert evidence, the judge also concluded Dr D did not have the experience necessary to undertake the surgery and should have neither recommended nor performed the surgery.

Would J have consented to surgery if he had been properly advised?

The judge concluded that if J had been properly advised of the relative risks involved in surgery compared with monitoring the tumour they would not have proceeded with the surgery.

Given their symptoms, it would have been entirely irrational to agree to a procedure that carried significant risks of catastrophic injury, performed by a surgeon who had never undertaken the procedure before nor been trained or experienced.

The evidence indicated J was not an irrational person. They had preferred to wait and monitor rather than go ahead with surgery in the past. It was implausible in this case that they would have chosen the surgery over the conservative option.

Outcome

The judge concluded J never been given a real option to choose between available treatment options, nor were they properly advised about the relative risks of each option.

Dr D had breached their duty of care to J.

Key lessons

Your consent discussion with a patient needs to include the material risks and benefits of the treatment, including potential adverse effects, contra-indications for treatment and alternative treatments.

You are expected to disclose both risks that a reasonable person would consider material to their decision-making, or risks that you know or ought to know would be important to the patient.

The relative experience and skill of the surgeon performing a particular procedure may be material to the patient and may increase the risk of the procedure, so you should always be prepared to discuss this with the patient. Failing to disclose relative lack of experience or skill may be considered negligent.

Make sure you discuss available alternative options. If you prefer one out of a number of acceptable options, it is appropriate to explain the reasons you prefer one over the others but ensure that you present the options and their relative risks and benefits fairly.

Be careful not to omit information about a clinically acceptable alternative because you would not choose it or do not consider it in the patient’s best interests. That is the patient’s decision to make.

You are expected to recognise and work within the limits of your competence and scope of practice.

References and further reading

Avant factsheet – Consent: the essentials

Avant eLearning – Consent: Informed consent and more