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Clinical Negligence – Informed Consent

If you or a member of your family is suffering from a personal injury caused by negligent medical treatment, our specialist clinical negligence lawyers may be able to help you claim compensation. Contact us today on 0800 032 8511 for claim advice, or by completing a claim enquiry form.

Informed Consent
What Should I Be Told Before An Operation?
Surgical Errors
Who Can Claim Compensation
Landmark Informed Consent Case
Compensation
Specialist Personal Injury Lawyers

Informed Consent

Before a patient undergoes an operation or medical procedure, any serious or frequently occurring risks must be clearly explained to them and they will be asked to sign a consent form to state that they agree for the operation to go ahead. This is known as informed consent.

Invasive actions and medical intervention without consent would otherwise be considered an assault, so it is important that the doctor provides their patient with all the information they need to understand the facts of the matter. They can then make their decision to agree to, or refuse surgery.

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What Should I Be Told Before An Operation?

Whatever the procedure, the doctor should provide enough detail about the potential benefits and possible risks so that the patient is able to make an informed decision. Generally this should include any risks that occur frequently and also risks that are relatively rare but would have serious effects.

There are some risks that are common to many operations (for example those associated with anaesthesia), however many carry their own, specific risks.  Some of these are mentioned in our information pages about certain procedures, as follows, but you should ensure that you obtain proper advice from a medical professional before going ahead with any type of surgery:

• Breast Reduction
• Cosmetic Surgery
• Failed Sterilisation
• Gall Bladder Removal (laparoscopic cholecystectomy)
• Laser Eye Treatment

It is not considered necessary for the doctor to mention every single risk, as some would be very slight or unusual and perhaps not as important in the overall balance of facts.

In most cases, the doctor will outline on the consent form the risks which have been discussed with the patient. This is not a requirement however and in cases involving a minor operation the risks may not be detailed on the form at all.

If the risks are major, for example in cases of neurosurgery where any adverse effects can be devastating, a more detailed account of the risks will usually be provided to the patient.

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Surgical Errors

Although giving consent to a medical procedure confirms that you are aware certain complications may happen, this does not mean that negligence on the part of the surgeon or medical staff is acceptable.

You are only stating your understanding that some ill effects can occur even when the doctor takes due care and performs the procedure in the correct manner.

If you sustain an injury during an operation because of negligence on the part of your doctor, for example a surgical error like accidentally cutting a main nerve or blood vessel, you may be entitled to claim medical negligence compensation as you have not consented to this negligent treatment.

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Who Can Claim Compensation?

Cases where a person feels that they were not able to make an informed decision about their medical or surgical treatment can be very complicated. It is therefore always advisable to seek the advice of a specialist clinical negligence lawyer.

In order to be successful in making a compensation claim, a patient would need to show that they had not been properly informed of a particular risk. This will often be in conflict with the evidence provided by the doctor. It would then be necessary to go on to prove that, had they been told, they would have refused to go ahead with the procedure.

The difficulty is that, after the event and knowing what has already happened, the person will of course confirm that they would not have agreed. The reality however is that many patients do agree to proceed with operations when fully aware of the risks. The judge therefore has to assess what decision the patient would have made at the time.

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Landmark Informed Consent Case

A recent case was heard by the House of Lords where a journalist underwent spinal surgery and was left in a much worse condition as a result. This was not due to any negligence on the part of the surgeon in carrying out the operation; it was a recognised risk which could occur even when the operation was done carefully. However, she was able to persuade the court that she had not been informed of the risk.

The judges accepted her statement that, if informed, she would not have gone ahead with the surgery without first going away to think about the matter and seek a second opinion or further advice. As the risk of the surgery making her condition worse was small, it was probable that the same operation carried out on a different occasion would not have met this complication. Therefore, the House of Lords ruled in her favour by a majority of 3:2. It helped that she could show that she had refused surgery before, and had always been careful to research the risks of procedures before agreeing to undergo them.

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Compensation

There are two elements to a compensation award. The first is for the pain and suffering you may have gone through. This is called general damages and reimburses you for pain, suffering, scarring and depression resulting from the negligence, and can include an award for your inability to do things after the medical accident that you used to be able to do before (eg mow the lawn, walk the dog, drive and so on).

The second element of a compensation award is for your actual financial loss and expense, and is known as special damages. Loss of earnings can be included. It is important to keep receipts for any expenditure you have related to your injuries, so that these can be reclaimed. The aim is to put you back in a position financially as if the medical accident had never occurred.

An award in a clinical negligence case is based on the difference the negligent treatment had, compared with the likely outcome had it been a success. Awards use previous awards in similar cases as guidance. Many clinical negligence cases are settled out of court.

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Specialist Personal Injury Lawyers

The Legal Line lawyers have extensive experience in recovering compensation for the victims of clinical negligence, including cases involving informed patient consent. They can provide expert claim advice on all areas of making a claim and offer the assistance and guidance that you need.

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