Allegation of failure to consent

The scene

A middle-aged male patient complaining of pain in his left groin attended a general surgeon after being referred by his GP. The surgeon identified a small left-sided indirect inguinal hernia and recommended laparoscopic hernia repair with mesh.

At the out-patient clinic, the patient was consented for frequently occurring risks which included bleeding, infection, recurrence, groin ache, visceral and/or vascular injury and DVT. The procedure was outlined again and the risks reiterated on the day of surgery, which took place one month later. The hernia repair was carried out uneventfully and the patient went home the next day.

A few weeks later, the patient reported to his GP that he had severe pain and tingling in his left thigh and groin, and that he had difficulty moving and was unable to work. The GP arranged nerve conduction studies which were suggestive of left ilioinguinal sensory neuropathy. As a result, the mesh was removed by a different surgeon, and although the patient's symptoms improved, there was persisting discomfort in his groin, requiring ongoing treatment with a pain consultant.

The claim

The patient brought a claim alleging that the surgeon failed to obtain properly informed consent, with reference to the case of Montgomery vs. Lanarkshire Health Board; that the patient should be warned of circumstances where a reasonable person would be likely to attach significance to the risk, or that the doctor was or should have reasonably been aware that the particular patient would be likely to attach significance to it.

The patient held that the possibility of nerve damage should have been recorded and sought damages of over £100,000, alleging that if he been aware of this risk, he wouldn't have undergone the hernia repair.

In investigating the claim, the MDU sought independent expert evidence on the surgeon's behalf. The expert was supportive of the surgeon's care, noting in particular that at the time of initial presentation, the patient was already in severe pain because of the indirect inguinal hernia.

The patient held that the possibility of nerve damage should have been recorded and sought damages of over £100,000...

The complication was extremely rare and was not listed as a significant, unavoidable or frequently occurring risk in widely accepted consent literature available nationwide, in both NHS and private hospitals.

The incidence of incapacitating and severe postoperative ongoing pain was extremely low, especially following laparoscopic repair. The MDU drafted a letter of response disputing that the patient would have attached significance to this, especially in the presence of pain caused by the hernia. The MDU also argued that the patient had already consented to complications that were significantly more severe, such as major vascular injuries, which the patient was prepared to accept. Specifically, the patient had been informed of the proximity of the external iliac artery and vein and the rare possibility of injury to these structures, which would have resulted in a laparotomy to control bleeding.

Thanks to the MDU's efforts, the claim was not pursued after the letter of response was served.

Summary

While the case of Montgomery has rightfully drawn clinicians' attention to the issues of consent, in many ways it brings the law in line with the expectations put upon doctors by the GMC, and set out in detail in their consent guidance, Consent: patients and doctors making decisions together (2008). Clinicians should continue to take into account patients' concerns and expectations when recommending treatment.

For a claim to be successful, the claimant still needs to prove that there was breach of duty on the part of the treating clinician and that their actions led to a different outcome (causation). In this case, the MDU was able to obtain expert evidence that supported the surgeon's consent process. Also, no causation came from the allegations, as we successfully argued that the patient would have undergone surgery anyway.

The member's perspective

'Like many surgeons who are faced with a complication that has changed a patient's life, I have reflected on what point in the surgery could have led to the severe neuralgia experienced post-operatively. Dissection over 'the triangle of pain' lateral to the deep inguinal ring appeared both straightforward and unremarkable at the time. The patient was slim, with little sub-peritoneal fat, which has made me far more circumspect in the pre-peritoneal dissection in these patients.

'I have become more explicit in discussing the length of time it takes groin pain to resolve when operating on small hernias for pain, including making patients aware that the repair may not solve the problem.

'Since this case I have always included chronic groin pain as a complication when consenting patients for both laparoscopic and open inguinal hernia repairs, despite the rarity of severe pain. I discuss this complication explicitly, including the possibility of mesh removal, and have supplemented the consent with a professionally produced consent leaflet.'

This guidance was correct at publication 16/07/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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