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If Only I Had Known I Would Have… Consent to Medical Treatment and the Problem of Hindsight - Paul Sankey, Enable Law

09/08/17. A recent decision (Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB)) is another example of how the law has changed following Montgomery v Lanarkshire Health Board (see It nevertheless also shows how difficult it is for patients to succeed in consent claims.

What happened?

The Claimant was a 45 year old woman. She was single and had one child. She developed back pain and in December 2010 had spinal surgery at the Royal Devon & Exeter Hospital. At follow up a month later her surgeon failed to diagnose an incisional hernia. As a result her surgery was delayed by 2 months. For that she recovered modest damages of £7,500. However, the more significant issue in her claim was the advice she was given and whether she had consented to the risks of a mesh-based repair.

In May 2011 a general surgeon advised open surgery with a mesh-based repair and abdominal wall reconstruction. The operation was done in June 2011. Unfortunately the operation left her with complications of swelling and pain. Some 3 years later she had another operation. The mesh was removed, the hernia repaired with a single stitch and she had a full abdominoplasty.

At the time of the first hernia repair she had been single. She subsequently started a relationship with a partner and wanted to have children. Unfortunately an effect of the mesh surgery was to create significant risks in pregnancy. She was strongly advised against getting pregnant and as a result abandoned plans to have a second child. She claimed that with appropriate advice in May 2011 she would have elected for a hernia repair with a stitch rather than mesh and been able to have children.

Had she been correctly advised?

At the appointment in May 2011 her surgeon advised her about mesh repair. He said she would need either a prolene or a biological mesh depending on the amount of her muscle damage. He did not ask her whether she had plans to become pregnant in the future or discuss the implications of mesh repair for pregnancy. He did not advise that he could do a primary sutured repair. The reason he did not do so was that a mesh repair was likely to be successful whereas a suture repair would have a high risk of failure.

He accepted at trial that if there had been a prospect of pregnancy in the future, he should have discussed the risks of mesh repair. Mesh repair entailed significant risks in pregnancy. The court therefore found that she should have been warned. She should also have been told that suture repair was an option.

What exactly should the surgeon have advised?

The court found that had the surgeon considered the possibility of pregnancy, he would in fact have advised of certain risks should the Claimant become pregnant. Those risks were that...

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