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The Optimistic Surgeon and the Unhappy Patient: Lessons from the Courtroom - Paul Sankey, Foot Anstey LLP

11/05/17. When an optimistic surgeon met an unhappy patient in court, it was the patient who had the judge's sympathy. The story has lessons for all surgeons. The courts now expect much more when it comes to advice and the case of Thefault v Johnson is an example.

What happened?

Mrs Thefault had back pain in late 2011. Scans showed a bulging disc at L4/5. She then developed left leg pain. This was an irritant (but no more). She saw a very experienced spinal surgeon, Mr Johnson. He thought she would probably get better with time. She took a second opinion. She had facet joint injections. When she did not improve, she spoke to Mr Johnson again by telephone. This was a 5 minute conversation. He advised surgery and confirmed his advice in a detailed letter.

She accepted his advice, signed a consent form and then had the operation. There was still no improvement. In fact after a while she was worse. She went back to the surgeon who had given her a second opinion. He carried out another operation. He found that the dura was punctured and nerve root fibres at L5 were exposed. It was unclear exactly when this had happened. Mr Johnson was sure it had not happened during the first operation because he would have seen signs of the damage. On the other hand the second surgeon was thought it had not happened during the second operation.

Mrs Thefault brought a claim against Mr Johnson. She alleged he had misadvised her as to the risks and benefits of surgery and then negligently damaged the dura during the operation. At trial the evidence was too unclear for the judge to find that the injury had been caused by negligence. That part of her case failed. However she established that Mr Johnson's advice was inadequate. With better advice she would not have had the first operation.

In effect Mr Johnson's advice had been too optimistic. It did not reflect the true risks of surgery or the benefits of leaving her condition alone as an alternative to operating.

What was wrong with the advice?

So what did he say that was too optimistic? The trial judge made a number of findings critical of his advice.

  1. Mr Johnson did not say in his letter that Mrs Thefault's pain would probably resolve anyway within a year. He had actually told her this – but not repeating this in his detailed letter gave the impression that the odds were stacked in favour of surgery.

  2. He said there was 'every chance' that her back pain 'would settle'. In fact the chance was only 50/50 but only of alleviating it. He had exaggerated both the chances of improvement and the likelihood of eradicating, rather than merely relieving, her pain.

  3. He said the chance of 'ridding' her of leg pain were at least 90%. The judge commented that 'more than 90%' could mean 95% or 97%. In fact according to the expert evidence the correct figure was 85%. If 'at least 90%' was taken to mean, say, 95%, this would be a difference of 10%. That was a significant difference.

  4. He did not advise that there was a risk of up to 5% of making her worse as a result of non-negligent complications of surgery.

The judge found that with more accurate advice Mrs Thefault would not have had surgery. Not only would a 'reasonable patient' in her position (applying an 'objective' test) be unlikely to have the operation, but on the evidence Mrs Thefault herself would not.

She had of course signed a consent form. However Mr Johnson did not claim at trial that the form was evidence of adequate consent and it was clearly based on incorrect information. The judge entirely discounted it with the words, 'In my view the document is of no real significance on the present facts'.

Lessons to be learned…

The law in relation to advising patients and obtaining consent to medical treatment has changed significantly over the last 2 years. This case gives a further indication of how the courts are now approaching consent. So what are the lessons to be learned?

  1. Patients are entitled to accurate information about risks and benefits. Surgeons need to take care to be accurate and realistic in their advice. The problem with Mr Johnson's advice was that it was too optimistic. His confident assertions were not matched by the evidence.

  2. It is important to explain the risks and benefits of alternative forms of treatment – or no treatment. Mr Johnson has prioritised one form of management – surgery as opposed to non-surgical options. His failure adequately to explain that Mrs Thefault's pain would probably settle anyway distorted the overall picture.

  3. Beware of relying on consent forms. They may have a role but only as part of a process. Patients sometime describe them as 'disclaimers'. They are not. They are simply part of the evidence as to what communication has taken place between surgeon and patient.

  4. The rules have changed since the Supreme Court decision in Montgomery v Lanarkshire Health Board. The test of whether advice is adequate is no longer whether it accords with the practice of a responsible body of surgeons. The test is what of the reasonable patient in this patient's position. This is a very significant change.

It is 2 years since the Montgomery changed the landscape in relation to consent. The implications of that decision are becoming clearer as further cases come before the courts. Thefault v Johnson is another example showing the impact of that change. It is important that surgeons fully understand what patients are entitled to know and what the courts expect.

Foot Anstey LLP

For more about consent see:

On the landmark case of Montgomery v Lanarkshire Health Board:

On other recent legal cases on consent: ©

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