In March 2015, a unanimous decision in the U.K. Supreme Court (Montgomery v Lanarkshire Health Board) made it clear that doctors must ensure their patients are aware of the risks of any treatments they offer and of the availability of any reasonable alternatives. They must provide information in a clearly understandable format and provide details of all the risks, not just the ones that they deem relevant.
The patient developed lipoma (benign tumour) in her wrist and underwent surgical excision to remove it. She was advised of the risk of bleeding, scarring, recurrence and nerve injury. The surgery was performed without complications. However, in the following days and weeks, the patient complained of recurrent pain and loss of sensation. She had to be signed off from work. Scans revealed nothing, but her situation continued to deteriorate so that after a month when she saw the surgeon again she could not make a fist and had lost movement in her thumb and index finger. Further reviews, scans, investigations and physiotherapy failed to improve the pain. EMG tests were undertaken and they revealed severe carpal tunnel syndrome. The patient went back to the surgeon for review and he advised that she could not be suffering with this because he had performed carpal tunnel decompression during her surgery. Referral to a specialist showed that the median nerve had been damaged during the procedure and this was the cause of the pain and loss of sensation she was suffering. This patient’s case constitutes an issue of consent because she did not consent to carpal tunnel decompression and therefore she was not advised of the risks of this surgical procedure.
The expert diagnosis:
Our expert was able to carry out a detailed review and analysis of the claimant’s history to rule out any pre-index incident cause and provide a diagnosis and explanation of what was causing the pain. They also offered a treatment plan to assist in the management of the pain and a prognosis for the future and a detailed opinion on the impact on the claimant’s work and home life.
The expert also reviewed in detail how and what consent was obtained to provide an expert opinion as to whether the benchmark of informed consent had been reached. Informed consent means that the clinician must give the patient all of the information in terms of what the treatment or procedure they are carrying out involves, including the benefits and risks. They should also explain whether there are reasonable alternative treatments, and what will happen if treatment doesn’t go ahead. This did not happen and therefore our expert’s opinion was crucial in demonstrating this.
The Defendant conceded that the standard of informed consent had not been reached on this occasion and the claimant had not had the opportunity to consider the risks associated with the surgery and alternative treatments had not been discussed or offered. A sizeable settlement was agreed between parties.