The scene

A 35-year old patient presented to her GP six months after the birth of her first child. She had suffered with endometriosis in the past for which she had undergone three laparoscopies, and her pelvic pain had recurred. She was referred by her GP to a community gynaecology clinic where she was seen by an MDU member.

At the community gynaecology clinic an IUS was fitted to help her pelvic pain. Two weeks after having the IUS fitted the patient returned to her GP and reported that she was bleeding every day. She said that she was not advised about having the IUS fitted before it was done, and that she would probably not have wanted it. Following discussion about the IUS and its side effects with her GP, she decided to wait six months and see if it suited her.

The patient returned to the GP surgery two months later and asked to have the IUS removed as she was still struggling with irregular bleeding. An appointment was made for removal shortly afterwards.

The claim

The patient's solicitors wrote to the MDU alleging that the member had not obtained verbal or written consent from the patient before fitting the IUS, and that the patient did not realise that she was having this fitted until after the procedure. The patient claimed that she thought she was being examined by the doctor rather than having a procedure, and as she had had previous surgery she had expected that she would need another operation.

The doctor requested assistance from the MDU and gave a report detailing her account of the events, and stated that she had explained the procedure to the patient and obtained verbal consent. There was a clear factual dispute between the patient and the member's evidence, with the claimant's solicitors alleging that the member fitted the IUS without the patient's knowledge. The only record of the consultation was the letter sent to the GP after the appointment, which didn't detail the pre-insertion discussion.

An independent expert was instructed by the MDU to report on breach of duty. The expert was unsupportive of the member's pre-insertion counselling and consent process. The MDU wrote to the patient's solicitor noting the factual dispute as to what was discussed at the appointment and highlighting that there was a litigation risk for both parties. As a result, the claim was settled on behalf of the MDU member without any admission of liability.

Summary

Factual disputes between the patient's and the doctor's evidence are quite common in clinical negligence claims. Making good quality, contemporaneous records is important and provides objective evidence of what occurred during a consultation in the event of a claim.

Consent issues around fitting of IUS

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