UK Failure to Obtain Informed Consent

The failure to obtain informed consent has been the subject of several landmark court cases in recent years; the outcome of which is that patients have to be provided with sufficient information about all possible “standard” courses of treatments and their risk factors before it is considered that they have given their “informed consent” prior to undergoing a non-emergency medical procedure.

The failure to obtain informed consent can apply to all forms of medical procedures from dentistry to childbirth, and from cosmetic surgery to cancer treatments. When a medical professional fails to provide an appropriate level of information in order that a patient can make an educated decision on their treatment, then it may be possible to claim compensation for the failure to obtain informed consent if the patient subsequently suffers a loss, an injury, or the avoidable deterioration of an existing condition.

However, what may be considered to be sufficient information about all possible “standard” courses of treatment is open to interpretation. Consequently, even though a procedure you may not have been informed about would have resulted in a more positive outcome, a compensation claim for the failure to obtain informed consent may not be successful if it deviates from a procedure accepted by the general medical community.

Therefore, if you have suffered a loss, an injury or the avoidable deterioration of an existing condition after undergoing a procedure that had risks associated with it you were not informed about, you should speak with a medical negligence solicitor at the first possible opportunity. The solicitor will investigate the circumstances surrounding your procedure and advise you if you have a compensation claim for the failure to obtain informed consent which it is worthwhile to pursue.

Claim for a Vasectomy on the Wrong Patient Likely after Errors Admitted

A claim for a vasectomy on the wrong patient is likely to be made against the Broadgreen Hospital in Liverpool following the admission of procedural errors.

In February 2014, the man – identified only as Patient A – was due to undergo surgery to have scar tissue removed, when he was brought into the operating theatre out of sequence and underwent a vasectomy procedure instead.

The error occurred initially due to changes being made to the operating theatre running order. The nurse responsible for the changes – Rosemary Tollitt – failed to advise colleagues of the changes or check Patient A´s identity as he was being taken into theatre.

However, the doctor in charge of the surgery – Dr Nanikram Vaswani – has admitted misconduct charges for failing to confirm the patient´s identity, not reviewing the patient´s medical notes and not following surgical checklists before commencing surgery.

Dr Vaswani has also admitted failing to inform the hospital authorities immediately after realising his error, and failing to keep notes of his conversation with Patient A after the operation – a conversation that led to an unsuccessful vasectomy reversal operation being attempted later in the day.

In addition to the procedural errors likely to be included in a claim for a vasectomy on the wrong patient, it is also the opinion of the General Medical Council that Patient A would not have been in an appropriate emotional state to give his informed consent for the vasectomy reversal procedure.

It is understood that Patient A has sought legal advice about making a claim for a vasectomy on the wrong patient against the Royal Liverpool and Broadgreen University Hospitals NHS Trust. A spokesman from the General Medical Council said that the man had been “physically and emotionally traumatised” by the experience.

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Birth Injuries Compensation Case Resolved at Supreme Court

A landmark birth injuries compensation case against the NHS has been resolved at the Supreme Court in London in favour of a mother and her severely disabled child.

Sam Montgomery was born at the Bellshill Maternity Hospital on October 1st 1999, having been deprived of oxygen during his delivery. Sam´s problems started when his shoulder became trapped in his mother´s birth canal after the delivery of his head. Sam suffered shoulder dystocia and – after a 12-minute procedure to release his shoulder – he had to be resuscitated.

The deprivation of oxygen during the release procedure caused Sam to suffer brain damage and he was diagnosed with cerebral palsy. Now, at age 15, Sam has limited communication skills and still suffers from the nerve damage he sustained during his delivery – which affects his shoulder, arm and hand.

On Sam´s behalf, his mother – Nadine – made a claim for medical negligence compensation against NHS Lanarkshire. Nadine alleged in her claim that her consultant obstetrician and gynaecologist – Dr Dina McLellan – had failed to warn her of the risks associated with a natural birth when Nadine was a petite woman with Type 1 diabetes.

When the birth injuries compensation case went to the Outer House of the Court of Session in Edinburgh, the court heard that women with Type 1 diabetes are more likely to have bigger babies and that Nadine had expressed concerns during her pregnancy about delivering the baby safely. The court also heard that Nadine was not given the option of a Caesarean Section birth despite a CTG trace showing the size of her son.

In their defence of the birth injuries compensation case, lawyers representing NHS Lanarkshire said that the consultant´s duty to advise the risks involved in a natural delivery would have been triggered if there was a high probability of a grave adverse outcome. As there was only a 9%-10% of shoulder dystocia occurring, Dr McLellan chose not to advise Nadine of the risks.

Despite Nadine testifying that she would have chosen a Caesarean Section procedure over a natural birth if she had been advised of the risks, the Outer House of the Court of Session found in the consultant´s favour, as did the Inner House when Nadine appealed the verdict. Undeterred, Nadine took her birth injuries compensation case to the Supreme Court in London, where Dr McLellan told the court that, in her view, it was “not in the maternal interests for women to have Caesarean Sections”.

The Supreme Court judges disagreed with the consultant and said that social and legal developments “point away from the relationship between the doctor and patient based on medical paternalism”. The judges ruled that Dr McLellan was wrong to put her personal views ahead of the course of treatment that Nadine underwent and ruled that a doctor has a duty of reasonable care to ensure that patient is aware of any material risks involved in any recommended treatment.

Lord Kerr and Lord Reed – the judges who delivered the Supreme Court´s verdict – commented “There can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section.”

The Supreme Court awarded Nadine £5.25 million compensation for the birth injuries that Sam had suffered and said it would be a mistake to view patients in the modern world as “uninformed, incapable of understanding medical matters or wholly dependent upon a flow of information from doctors”.

The decision by the Supreme Court is significant as it acknowledges a patient´s right to decide upon the level of risk they wish to take given all the information available. It means that patients will have to be provided with information about possible alternative treatments and their risk factors before being considered to have given their “informed consent” prior to undergoing a medical procedure.

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Risk of Deaf Patients Suffering from Medical Negligence Identified

A risk of deaf patients suffering from medical negligence has been identified in a soon-to-be-published report based on research conducted in Ireland.

A soon-to-be-published report has highlighted the danger of deaf patients suffering from medical negligence due to a failure by medical professionals to communicate.

The report – “Critical Care Required: Access to Interpreted Healthcare in Ireland” – was prepared by Professor Lorraine Leeson as part of the EU-funded project “Medisigns” and conducted at Trinity College’s Centre for Deaf Studies in Dublin.

“Critical Care Required” focuses on facilitating better communications between healthcare providers, sign language interpreters and patients, and highlights the risk of deaf patients suffering from medical negligence when communications are misunderstood or misinterpreted.

Examples of deaf patients suffering from medical negligence featured within the report include:

  • One deaf patient was prepared for heart surgery after he attended hospital with a finger injury
  • Concern was raised when a woman failed to sleep for three nights in a recovery ward. It was later discovered that she could not communicate that she was cold.
  • One patient, who relied on sign language to communicate, had eye drops put in their eyes and could not see the signals being made to them or otherwise communicate.
  • A deaf patient was killed after being released from hospital as he attempted to walk home from Galway to Clifden – a distance of 50 miles.

Focus groups from Trinity College’s Centre for Deaf Studies who took part in the research also commented on the attitude of healthcare providers towards deaf people. They said that there was a lack of provision for those who are hard of hearing, and one case history revealed how hospital staff had to use a hospitalised child who understood sign language to act as an interpreter in the hospital´s accident and emergency department.

Shortage of Resources No Excuse for Deaf Patients Suffering from Medical Negligence

According to a Health Service Executive spokesperson, patients who are deaf or hard of hearing “have a right” to have a sign language interpreter present at healthcare appointments, and the healthcare provider must find the resources to ensure one is always available. This often happens when appointments are made in advance, but there is the danger of deaf patients suffering from medical negligence when they attend the accident and emergency department of a hospital or have an emergency appointment with their GP.

GPs in particular appear to consider engaging a sign language interpreter as an avoidable expense at a time when their funding has been reduced due to FEMPI legislation. However, Professor Leeson cautioned that a shortage of resources is no excuse for deaf patients suffering from medical negligence. She said: “At the end of the line it is [the doctors’] responsibility to make sure that they are gaining informed consent from their patients and to ensure that their patients understand, and what we are finding is that patients are saying that they absolutely do not understand what is happening.”

She added that failing to use the services of a sign language interpreter could have serious implications for both the patient and doctor: “what [would be] the cost if they were found to be liable for not actually clearly communicating with their patients and there are consequences arising from that”.

If you or somebody close to you has suffered medical negligence due to being hard of hearing, we appreciate that you may not be able to use our free medical negligence claim assessment service over the phone. We would therefore request that you complete the form at the foot of the “Contact this Web Site” page – using the text box to let us know that you cannot communicate by telephone, and supplying us with an email address or an alternative form of communication.

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