Surgeon’s proactive response avoids Medical Board sanctions

Jean-Pierre Kapel, LLB, BBus (Man), Senior Associate, Professional Conduct, Avant Law

Sunday, 21 August 2022

man writing on paper

A case in which an otolaryngology surgeon member’s consent process was called into question, emphasises the importance of good medical records and how taking steps to improve your practice can go a long way.

Management options provided

The member, an experienced surgeon, first consulted with the patient when he presented with a nasal obstruction. The surgeon took a full medical history, which included two earlier operations on the patient’s nose.

Upon examination, the surgeon found a depression on the right side of the patient’s nose, a deviated septum and large inferior turbinates.

The surgeon explained the relevant options to the patient including to do nothing, conduct a trial of nasal sprays or have an operation.

The conservative approach of using nasal sprays was discussed. However, given the degree of the septal deviation, the surgeon informed the patient that sprays were unlikely to improve his breathing. The surgeon said she could perform a functional rhinoplasty or a functional and cosmetic rhinoplasty using a conchal cartilage graft and provided the patient with information on the nature and aim of the procedures, and any significant associated risks.

Informed consent for the rhinoplasty and turbinoplasty was obtained and a multi-page specific consent form co-signed by the patient was saved to the medical records. However, the patient subsequently decided to try the nasal sprays and not to have the operation.

Patient has rhinoplasty procedure

The patient presented 18 months later with a blocked nose, eager to have the operation. He also complained of headaches and pain across his nasal dorsum and in between his eyebrows, associated with strong smells.

The surgeon made it clear the operation would not improve the sensation of pain across his face. The patient decided to go ahead with the surgery.

Following her usual practice, the surgeon discussed the goals and risks of the operation with the patient and obtained informed consent. They completed another consent form which included consent for additional graft sites, if required. The patient also signed a current hospital consent form to provide informed consent to have the operation.

Two weeks later, the surgeon performed a rhinoplasty and turbinoplasty without any complications. Postoperative reviews took place on five separate occasions and showed the patient was recovering well. The patient reported his breathing had improved and a nasendoscopy showed an excellent nasal airway. Cosmesis of the nose was also excellent.

The patient returned for the final time five months later, saying he could breathe through his nose satisfactorily and there was no nasal obstruction. However, he was experiencing rotational vertigo. The surgeon performed another nasendoscopy and the Unterberger’s test, both of which were normal. The surgeon queried whether he may have viral vestibular neuronitis and arranged for a CT scan of the brain.

Responding to the complaint

Five years later, the patient lodged a complaint to Ahpra claiming he had developed empty nose syndrome (secondary atrophic rhinosinusitis) due to the procedures the surgeon had performed.

Avant’s medico-legal team helped the surgeon submit a detailed response to Ahpra. During this process it transpired that while the first consent form was in the medical records, due to an administration error, the second consent form was not.

Fortunately, the surgeon was able to demonstrate that informed consent had been obtained through the collateral information contained within the medical records. In addition to a contemporaneous clinical note which referred to consent having been obtained for the additional graft site, if required, there was also a contemporaneous clinical letter to the patient’s referring GP reporting that the patient had consented to the procedure.

No action taken

When the surgeon realised the second consent form was not saved in the patient’s medical record, she proactively sought to improve her practice. She completed an education plan put together by Avant’s Risk Advisory team on informed consent and record keeping, and a written reflective piece was submitted with the response. Evidence she had implemented changes to her practice on the consent process, including how information was recorded, was also submitted.

The Medical Board considered the steps taken by the surgeon and no further regulatory action was taken.

Key lessons

Consent is an essential requirement for any medical procedure. It can be verbal or written.

Unless patients have sufficient information, they are not able to make an informed decision. Fundamental to the consent process is an explanation of the process, rationale, benefits, risks, complications, and alternatives.

In this case, the surgeon followed her usual consent process during the two consultations prior to the operation and provided the patient with the information he needed to make an informed decision. Notwithstanding that the second consent form was not saved in the medical record and could not be located, the presence of the earlier detailed consent form in combination with the surgeon’s contemporaneous notes and supporting documents showed that consent was sought and obtained from the patient.

The surgeon took the Ahpra notification seriously, using it as an opportunity to improve her practice, through education and implementation of a new consent process. In circumstances where the surgeon had taken it upon herself to make changes to enhance her consent discussions with patients, the Medical Board determined that no further action was required.

Useful resources

If you receive a complaint, please contact us for medico-legal advice at or on 1800 128 268, available 24/7, after hours and on weekends in emergencies.

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The case discussed in this article is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality.

IMPORTANT: This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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