Thursday, 8 October 2015

The Right to Choose Your Surgeon

NHS patients have the right to make an informed choice about by whom they are to be operated on. So found David Blunt QC sitting as a Recorder in Exeter County Court. His judgment in the case of Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust was handed down on 22 September 2015 and is available on Lawtel.

Ms Jones, the Claimant suffered from back pain and was found to have a spinal canal stenosis due to a bulging disc at the L4/5 level. She was referred to the Royal Devon and Exeter Hospital where she was seen by Mr Chan, a Consultant Orthopaedic Spinal Surgeon, described in the judgment enjoying "a very high reputation both locally and nationally". Following discussions with Mr Chan on 17 March 2010, she elected to undergo decompression surgery. The operation was performed at the hospital on 29 July 2010 not by Mr Chan, but by a Mr Sundaram a Fellow in Trauma and Orthopaedics at the hospital who had already been appointed to a consultancy in Gloucestershire.

Ms Jones wanted to bring forward the operation but was told that if it was brought forward Mr Chan would not be able to perform it. She sought advice from her GP who recommended strongly that she should wait until Mr Chan was available. She accepted that advice. The Court found that Ms Jones only found out that Mr Sundaram, not Mr Chan, would be performing the operation as she was about to be wheeled into theatre. By then, the Claimant said, and the Court accepted, she felt she was "beyond the point of no return".

Sadly during the operation a dural tear was caused with avulsion or damage to a number of nerve roots. The Claimant's expert thought that the performance of the surgery was sub-standard but the Judge accepted the Defendant's expert's view that although the complication was at the severe end of the spectrum, it was not, without more, evidence of negligence.

Nevertheless the Claimant's claim succeeded. The Judge noted Lord Hope's judgment in Chester v Afshar [2004] UKHL 41 at [86]: 
"I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether and if so which and by whom, to be operated on."

The Claimant had been deprived of the right to choose by whom she was operated on. The damage caused to the Claimant was not due to some anatomical abnormality such that the same damage would have been caused whoever performed the surgery. The Judge found that had Mr Chan performed the operation it would have involved a "lesser risk than an operation carried out by any less experienced surgeon" and that accordingly, in his view, causation was established "on conventional principles". In any event the infringement of the patient's right demanded a remedy otherwise that right would be a hollow one [70]. 

Clearly there was strong evidence in this particular case that the choice of surgeon was important to the Claimant. Such evidence might be lacking in many other cases. Nevertheless this is further evidence, following Montgomery v Lanarkshire [2015] UKSC 11 of the Courts' emphasis on patients' rights to autonomy.

Cases such as Jones and Montgomery surely call into question the usefulness of the standard consent forms on which so many NHS Trusts rely. They might protect a Trust or a doctor against a claim for trespass to the person, but they surely fall short of providing any meaningful evidence that informed consent has been obtained. Ms Jones had in fact signed a standard Consent Form 1 several days before the operation (at pre-op assessment) which states that there is no guarantee as to the identify of the surgeon. That did not prevent the court from finding the Trust liable for not providing the surgeon chosen by the claimant.

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