MDU response

Based on these findings, the MDU was able to serve a letter of response denying liability on behalf of the member. However, the patient's solicitors issued and served proceedings alleging that the radiologist did not seek consent from the patient in relation to both procedures.

The radiologist agreed that despite verbally warning the patient of the risks and benefits of both procedures, this hadn't been documented. This meant that for both parties there was a risk that the case would not be totally proved or disproved - the doctor could not prove that he consented the patient and explained the risks of rupture, while the patient claimed that had he been made aware of the risk, he would not have consented to the procedure.

Because the judge would have to decide whom to believe and the potential risk this posed to the case, the MDU sought consent from the radiologist member to settle the claim without admission of liability.

Damages were negotiated and agreed at £12,500, but the legal costs were settled for almost five times that amount.

Summary

This claim illustrates well the importance of recording discussions about consent. The GMC guidance on consent promotes patient autonomy, requiring doctors to involve patients in decisions about their care and that information given to the patient must be presented comprehensively and accessibly.

The courts have now endorsed this approach when considering issues of consent in clinical negligence cases. In the recent case of Montgomery v Lanarkshire Health Board, the Supreme Court held that it was a doctor's duty to discuss 'material' risks inherent in treatment with patients.

The court now considers the risk to be 'material' if a reasonable person in the patient's position would be likely to think it significant. The doctor also has a duty to disclose any risk he or she knows (or should reasonably have known) to be of significance to that particular patient.

Ruptured Achilles tendon

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Ruptured Achilles tendon