Prospects Of Successful Surgery: A Case Of Over-Egging The Pudding?

When a patient consults a doctor about proposed surgery, the doctor must not be overly optimistic on the success of the proposed surgery.

A doctor’s number one duty is to act in the best interest of the patient. Specific guidance contained within the Good Medical Practice 2013 expressly requires doctors to listen to the wishes of patients and respond honestly to any questions from their patients.

Doctors are not permitted to allow any financial interest they have affect the way in which they treat patients. In the event of a surgeon, advising a patient to undergo surgery, this means the doctor must explain to the patient properly on the risks, without having their financial interest (fees for surgery) being a factor in any way. Fortunately, most doctors do comply with these duties.

Sometimes doctors/surgeons can face compensation claims for overstating the benefits of the surgery, because patients can sometimes allege that they were not properly warned of the reality of the surgery. An example of common claims we have advised on at Truth Legal involve the following points, which we encourage all patients to have in mind when undergoing surgery:

• Why is this specific surgery recommended?
• What are the risks of the surgery, which will affect you and are specific to your treatment?
• Are there any increased risks in your surgery compared to the usual risks with other patients and, if so, would that affect the outcome?
• If any of the risks materialise what impact would that have on you? For example, if you have having bladder biopsy and there is a risk of bladder perforation, what impact would that have on you day to day. All too often surgeons can state generic risks, for example, without patients necessarily understanding what impact that can have on them if that risk materialised.
• What is the likely recovery time in terms of leaving hospital, getting back to work, playing sport again, driving etc?  Whilst patients can have a “successful surgery” the recovery can be slow and can sometimes require time off work which can be to the financial detriment of a patient. It is important that surgeons do not use generic terms such as “quick recovery” as what is “quick” to some people may be slow to others.
• If any further treatment is expected after surgery, for example medication or physiotherapy, it is important that the patient is aware so they can plan and agree to this beforehand.
• Perhaps most crucially following the landmark case of Montgomery (see below), a surgeon must (therefore it is a mandatory requirement) advise a patient on the alternative treatment methods and this is very important in the medical profession following Montgomery.

The Montgomery Case

The Montgomery claim concerns the birth of a baby boy who had disabilities related to his natural delivery. The claimant mother was successful in arguing that her doctor should have told her about the alternative treatment methods (cesarean section surgery) and the risks of those methods, specifically how they would have impacted on the health of the baby.  The doctor delivering the baby had decided that cesarean was not appropriate without informing the mother of the benefits and risks of the cesarean which, if that had taken place, would have avoided the harm to the baby.

The highest court in the land confirmed that a patient must be told of the material risks of the recommended treatment and, importantly, in respect of alternative methods too. The court concluded this was absolutely essential in securing what is known as “informed consent” by a patient in agreeing to surgery/treatment knowing all of the options.

Conclusion

To sum up, it is important for patients to be accurately warned of the risks and realistic outcomes of surgery by their doctors and, also, equally as important for patients to know the alternatives, too.

If you or anyone you know is considering surgery, it is important to discuss the above points with your surgeon, ideally with the actual surgeon who is carrying out the procedure (sometimes the NHS does not permit this due to logistics and you can often discuss the risks with the surgeon’s colleague familiar with the surgery).

If you have had surgery and feel that you were provided with an overly optimistic view on your surgery, which has led to a poor outcome for you, the please do get in touch with us at Truth Legal. We will listen to what you have to say, during a no-obligation consultation. Most of our clinical negligence claims are brought using No Win, No Fee agreements.