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Published On: January 19, 2016 | Blog | 0 comments

Failure to obtain consent for last minute change of surgery

I  recently settled a claim for a lady who had surgery for a left-sided Warthin’s tumour. This is a tumour in the parotid gland, which is a major salivary gland located under the mouth and in front of both ears.

Following consultations and tests at hospital my client was offered an operation known as a superficial parotidectomy (removal of the superficial lobe of the parotid gland).  Some of the associated serious or frequently occurring risks were explained to her and she signed a consent form.  The form said the procedure would be a “ left superficial parotidectomy”.

My client was admitted to hospital for the operation.  Shortly before being taken to theatre, she was approached by a doctor whom she had not seen before who said something to her about her surgery which she did not understand. The doctor was questioned by a nurse about what he had said, but then left the ward without saying anything else to her.

When my client woke up after her operation she was in a lot of pain from two bumps on the top of her head. These were later found to be external haematomas (collections of blood). No one could explain to my client what had caused these.

As well as the haematomas on her head, my client suffered significant bleeding from the site of her  operation and needed a pressure dressing on the wound.

Five weeks later my client continued to have saliva discharging from a fistula (abnormal tract) she had developed on her neck.  She was re-admitted to hospital for a further week for antibiotic treatment.

Because of the unexplained lumps on her head, my client complained to the hospital’s Patient Advice and Liaison Service (“PALS”).  Understandably, she wanted to know what had happened to her whilst she was anaesthetised.

In the course of progressing her complaint (which took many months), my client was astonished to discover that the operation she had had was not in fact the superficial parotidectomy that she had consented to. When she saw the consent form she realised it had been amended to include the words “+/- sternocleidomastoid muscle flap”.  This different operation had therefore been carried out  without her knowledge.

At no stage were the advantages, disadvantages, serious and frequently occurring risks of a sternocleidomastoid muscle flap procedure explained to my client. She had not agreed to that operation at all.   She did not know anything about that operation. The form had been altered without her knowledge or consent immediately prior to surgery.

I gathered copies of my client’s medical records and obtained a supportive and critical report from a consultant ENT surgeon.   A formal letter of claim was sent to the hospital.  The hospital admitted very early on that my client had not consented to the operation and that the head injuries she suffered were indefensible.

We also alleged that the operation that was in fact performed was an unnecessarily extensive and complex procedure and for a variety of reasons in relation to her pre-existing medical conditions was not in my client’s best interests. Initially the hospital did not admit this.

I issued and served court proceedings. As expected, the formal Defence admitted negligence for the consent issue and resulting head injuries. It also admitted that the operation performed had in fact not been in my client’s best interests.

Shortly after the Defence was served the hospital made my client an offer to settle. It took a short while and a few lengthy discussions with the solicitor involved for me to get them to increase their offer to an amount that I could advise her to accept.

Often in clinical negligence cases issues surrounding properly, informed consent can be hard to prove. In this case, it was evident that the consent form had been altered after  it had been signed by the patient.  As it turned out the operation that was performed was entirely inappropriate and should never have taken place even if my client had consented to it.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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