A patient claimed he should have been warned of a 2 in 10,000 risk of bilateral chord damage
A 52-year old patient developed a swelling in the left side of his neck and after several months attended his GP who arranged an urgent referral. Initial fine needle aspiration and an ultrasound scan confirmed a papillary thyroid neoplasia. The patient was referred to an independent ENT consultant, an MDU member, who recommended surgery and discussed with the patient a number of serious or frequently-occurring risks.
Following the consultation he wrote to the referring doctor, recording: "I explained to [the patient] that he will require a total thyroidectomy with a central neck dissection and he was anxious for this to be done. I explained to him the risks of injury to the recurrent nerve of hoarseness and post-operative hypocalcaemia, bleeding and infection. He was happy for us to proceed to surgery."
The operation, a central neck dissection, was performed six days later.
Post-operatively, it was noticed that the patient was hoarse and had occasional difficulty in swallowing. He had sustained a rare complication – permanent bilateral vocal cord paralysis, full on one side and partial on the other, due to recurrent laryngeal nerve injury. He subsequently brought a claim against the ENT consultant.
The claimant accepted that the operation had been carried out competently and that he had been warned about the risk of unilateral laryngeal nerve damage. However, he alleged that he should have been warned about risk of such damage occurring to both nerves, and that damage to either or both nerves could be permanent. He further alleged that he should have been advised that the procedure was not urgent.
It was the claimant's case that if he had been properly consented he would not have gone ahead with the surgery on the date it took place but would have taken more time to gather information and seek a second opinion. He claimed that he relied heavily on his voice in his professional life and was no longer able to participate in meetings effectively due to a lack of confidence and inability to project his authority. He claimed that this affected all areas of his working life.
The claimant sought damages of almost £400,000, comprising £40,000 in general damages for pain and suffering on the grounds that the injury would have been avoided had the operation been postponed, and £338,000 compensation for the increased risk of losing his job as a result of ongoing problems with his voice and and disadvantage in the labour market if he had to look for a new one.
The MDU obtained expert evidence from an ENT surgeon. After consultation between the member, the expert and a barrister it was accepted that the patient had not been warned about bilateral laryngeal nerve damage, a risk in the region of approximately one to five cases in 10,000. The MDU argued that there was no need to consent patients in relation to such vanishingly small risks. The patient's expert did not agree and the case proceeded to trial.
Under cross examination the MDU's ENT expert argued that there was a responsible body of ENT opinion and practice which would not have warned the patient of the risk of bilateral laryngeal nerve damage or the possibility that such damage could be permanent.
By contrast, the claimant's ENT expert believed that the consultant should have explained the risk of bilateral cord palsy given that the risk, albeit rare, has significant consequences for patients. He also argued that the patient should have been advised that surgery could be delayed for at least two months without adverse consequences on his long-term prognosis, even though there was no viable alternative to the patient undergoing the surgery.
The judge accepted the MDU's case that there was no need to warn about bilateral laryngeal nerve damage since the risk of it occurring was too low. However, he also held that the claimant should have been advised that damage to the laryngeal nerves could be permanent and that not advising the patient accordingly constituted a breach of duty. The patient's case was nonetheless dismissed on the grounds that he would have proceeded with the surgery on the same date even if he had been advised about additional risks.
The judge noted that the claimant had wanted the operation to be performed as soon as possible and that there was no alternative treatment available to him. He therefore also dismissed the allegation that the consultant ENT surgeon had breached his duty of care to the patient by proceeding to surgery six days after the initial consultation or by not explicitly advising that the surgery did not need to be performed urgently. The judge remarked that it would be an unusual patient who would postpone life-saving surgery and that most patients would be eager to get on with such treatment without delay. Therefore, even if the patient had been advised about additional risks or the possibility of postponing the operation, he would still not have delayed it or sought a second opinion.
The MDU recovered over £28,000 in costs for defending the claim successfully at trial.
Joe Schmid
Claims handler
This page was correct at publication on 10/01/2014. Any guidance 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.