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Consent for surgery with an increased risk not known to the patient (07HDC11318)
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(07HDC11318, 17 October 2008)
General surgeon ~ Obesity ~ Liver biopsy ~ Liver function
tests ~ Increased risk of complications ~ Informed consent ~
Communication ~ Documentation ~ Preoperative assessment ~ Discharge
summary ~ Rights 4(1), 4(2), 4(5), 6(1)(b), 7(1)
A man was admitted to a private hospital for surgery. However,
abnormal liver function blood tests (increasing the risks of
surgery) were not noticed until immediately prior to surgery, by
which time the man had been anaesthetised. The general surgeon
decided to operate without advising the man of the increased risks,
which the general surgeon subsequently estimated increased the risk
of death fivefold.
The man was discharged six days after surgery, during which time
his liver function tests deteriorated. However, this deterioration
was not noticed by the clinical team, and no plans were made for
investigating the cause of the abnormal results.
He was admitted a week later to a public hospital for an
emergency operation for a perforated bowel. He developed
complications following the operation, including liver failure, and
died a few days later in hospital.
It was held that the surgeon breached Right 6(1)(b) by failing
to give the man an updated assessment of the increased risk of
complications from the operation. It follows that the man did not
give informed consent to the surgery, and the surgeon also breached
Right 7(1). The fact that the increased risk of complications was
disclosed after the operation was not legally relevant - inadequate
preoperative consent cannot be cured retrospectively.
By failing to review the man's liver function tests prior to
anaesthesia, and by failing to respond to the clues pointing
towards deteriorating liver function, and in particular to order
further investigations after discharge, the surgeon did not provide
services with reasonable care and skill, and therefore breached
The surgeon's documentation of the man's care fell short of the
expected standard, breaching Right 4(2). By failing to adequately
advise the man's GP of the problems encountered during his
admission, the surgeon failed to co-operate with a fellow health
care professional to ensure quality and continuity of care,
breaching Right 4(5).
The surgeon was referred to the Director of Proceedings, who
commenced proceedings in the Health Practitioners Disciplinary
Tribunal. The Tribunal upheld a charge of professional misconduct,
noting that the surgeon's actions were a serious departure from
accepted standards and fell seriously below the standards
considered acceptable and appropriate by competent, ethical and
responsible medical practitioners.
Link to Health Practitioners Disciplinary Tribunal decision: