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Case A
A patient consulted Dr L, a consultant orthopaedic surgeon, complaining of worsening wrist pain. Dr L examined the patient and found a mass. Dr L discussed and documented within the medical records the various treatment options and their corresponding risks and benefits. The main treatment option was surgery, but this had several risks, including nerve injury, which was explained to the patient. The patient decided to proceed with surgery.
Dr L performed the surgery and discharged the patient that day. One week later, the patient returned, complaining of numbness over the thumb. An examination was performed, which confirmed this, and a provisional diagnosis of a traction injury was made. It was decided to monitor the patient’s symptoms, with a further consultation being arranged.
The patient decided to seek a second opinion, after which he was given a diagnosis of a severed nerve.
The patient made a claim against Dr L, alleging the following:
There was a failure to obtain informed consent for the procedure.
The surgery was performed negligently because Dr L failed to prevent the nerve injury and/or failed to identify it.
There was a delay postoperatively in diagnosing the nerve injury.
Case B
Dr B performed an angiography for a patient after routine investigations detected ventricular hypertrophy. During the angiography, total occlusion of one of the coronary arteries was identified. Dr B informed the patient that an angioplasty could be performed to resolve the issue.
The patient agreed to undergo angioplasty, during which damage to the coronary artery occurred and the patient required emergency treatment.
The patient subsequently brought a claim with one of the allegations being that the patient was not advised of the alternative treatment options available, nor of the risks of the angioplasty.
Medical Protection investigated the claims by instructing solicitors to obtain each member’s witness statement and the relevant medical records. On review of these documents, it was found that the content of the medical records was insufficient to defend against the patients’ claims.
In case A, allegations against Dr L’s failure to obtain the patient’s consent could be defended. The patient’s medical records documented extremely detailed discussions of various consultations, setting out the various treatment options and the risks and benefits of each option, followed by signing of the consent form.
Likewise, the allegation that Dr L failed to diagnose the injury postoperatively could be defended because Dr L kept detailed notes of investigations and differential diagnoses. In addition, Dr L provided follow-up advice to the patient.
However, the surgical notes had limited detail. In particular, Dr L had failed to make any reference to the observations performed during the surgical process to identify anatomical structures or the observations performed to identify any possible injuries caused during the procedure.
Medical Protection was unable to defend the allegation that the nerve injury to Dr L’s patient could have been avoided and/or identified during surgery because we were unable to prove the checks and observations Dr L had made during the procedure. It was not possible to prove that Dr L had acted to the standard expected of a responsible body of medical opinion. As such, the case was settled.
In case B, Dr B’s only ‘evidence’ was the recollection that the discussion about the risks of the procedure and the alternatives had taken place with the patient. However, the records did not document such discussion and, while a consent form was signed, there were no details on the form regarding the risks that were explained to the patient. In addition, the patient’s witness evidence was that these were not explained to them.
Dr B was therefore extremely vulnerable to a successful negligence claim.