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Can you choose your surgeon?

Since 2008, patients in the UK have had the right to choose which doctor sees them both in a GP surgery and at hospital.  I am however surprised to learn that 8 years on, many patients feel they cannot exercise this choice and, recent case law has highlighted that this element of choice must be preserved.

A patient’s right to choose

In 2008, the Health Minister announced reforms to the NHS to allow patients the right to choose which surgeon they want to carry out their operation and which GP they would prefer to see in the practice.  It was announced that “This is about giving more clout to patients.  By measuring quality across the service and publishing their information for the first time, both staff and patients can work together to make better informed choices about their care.”  (Lord Darzi of Denham).

Despite this, the recent clinical negligence case of Kathleen Jones v Royal Devon & Exeter NHS Foundation Trust has illustrated that patients often feel compelled to accept the surgeon that they are offered rather than having the option to make a fully informed choice.

What was the case about?

Ms Jones had a history of back pain and was diagnosed with a spinal canal stenosis which was believed to be due to a bulging disc at the L4/5 level.  She was referred to her local hospital when she was seen by Mr Chan, a Consultant Orthopaedic Spinal Surgeon who was known to have a high reputation both locally and nationally.

Following discussions with Mr Chan, Ms Jones elected to undergo decompression surgery.  Ms Jones wanted the procedure to be carried out as soon as possible but was advised that there would be a wait if she wished Mr Chan to perform the surgery.  Ms Jones agreed to wait and a date for surgery was set for 29 July 2010.

Ms Jones attended hospital for surgery on 29 July 2010 as planned but, as she was being wheeled to the theatre she was advised that Mr Chan would not be performing the operation and that it would instead be performed by a fellow in Trauma and Orthopaedics at the hospital.  Although Ms Jones had requested the surgery be carried out by Mr Chan, and had been prepared to wait for this to happen, she felt at this stage that it was too late for her to object to the change in surgeon and consequently she agreed to go ahead with the procedure.

Unfortunately, during the operation, a dural tear was caused with damage to a number of nerve routes.  Whilst Ms Jones brought a claim suggesting that the surgery was substandard, it was recognised that it was a risk of the surgery that was being carried out.

Despite this, Ms Jones was successful in her claim as Ms Jones was deprived of her right to choose the surgeon who performed her surgery.  The Judge found that had Mr Chan performed the operation it would have involved a “lesser risk than an operation carried out by any less experienced surgeon” and consequently, the damage to the Claimant’s spine may have been avoided.

This is the latest case in a string concerning issues of autonomy and a patient’s right to choose a procedure which calls into question the usefulness of consent forms which are utilised in hospitals.  As although a patient may sign a consent form stating that there is no guarantee as to the identity of the surgeon, this case clearly illustrates that it would not prevent the Court from finding a hospital liable for not providing the surgeon chosen by the Claimant.

Our experience

We recently acted in a case similar to that of Ms Jones in which, again, a patient consenting to spinal surgery was not treated by the surgeon requested but instead by a colleague who used a different procedure to that which had been discussed.

The Claimant felt unable to remove his consent as, by the time he was made aware of the change in surgeon and procedure, he was already prepared for surgery and on his way to theatre.

Unfortunately, although the method of surgery performed was a recognised approach, it was not the approach the Claimant had originally consented to and, it resulted in the formation of a haematoma on the Claimant’s spine. Whilst the formation of the haematoma was not in itself negligent, there was a failure by medical staff to treat it promptly and the Claimant was left with permanent damage to his cauda equina nerves, causing problems with mobility, bladder and sexual function.

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