Introduction

Events leading up to complaint

Opinion: Dr B — breach. 8

Changes made since events. 17

Recommendations. 18

Follow-up actions. 19

Appendix A: Independent clinical advice to Commissioner. 20

 

 

Introduction

1.               This report is the opinion of Deborah James, Deputy Health and Disability Commissioner, and is made in accordance with the power delegated to her by the Commissioner.

2.               The report discusses the care provided to Mrs A by a gynaecologist, Dr B. Dr B worked both publicly and privately. Mrs A saw Dr B privately.

3.               Mrs A was under the care of Dr B from mid-2019 until late 2020 for treatment of endometriosis.[1] Mrs A felt that her best chance at reprieve from her symptoms was a hysterectomy.[2] She raised concerns that Dr B denied her a hysterectomy due to her age (in her twenties at the time) and lacked medical reasoning for the refusal. Further, Mrs A feels that she was verbally coerced into having a Mirena[3] inserted in August 2020, and raised concerns about Dr B’s communication with her generally. Mrs A also advised HDC that she suffered permanent nerve damage in her thigh secondary to being in the lithotomy position[4] during a laparoscopic excision of endometriosis[5] performed by Dr B in November 2020. Mrs A was unaware that she would be positioned in this way and was surprised to learn that this was done so that instruments could be used vaginally to manipulate the uterus, which she had also been unaware of. Mrs A feels that her consent should have been requested for this, or she should have at least been informed that this would occur.

4.               The following issue was identified for investigation:

·     Whether Dr B provided Mrs A with an appropriate standard of care between June 2019 and December 2020.

Events leading up to complaint

Background

5.               Mrs A was referred to Dr B in 2019 with pelvic pain. On 19 August 2019 Dr B performed a laparoscopy[6] and confirmed and removed a moderate amount of endometriosis. By 4 May 2020 Mrs A was experiencing pelvic pain again and saw Dr B. Dr B recommended trialling a different oral contraceptive pill (Cerazette[7]) and discussed the possibility of introducing pain modulators like amitriptyline[8] in the future. Dr B also explained that ‘there [would] be a role for a second laparoscopic procedure’, but he wanted to avoid this procedure for as long as possible and first try to ‘exhaust all other medical options’.

21 July 2020 appointment

6.               Mrs A had a follow-up appointment with Dr B on 21 July 2020. Dr B documented that they had trialled Cerazette and amitriptyline, and that Cerazette was working well but the amitriptyline made Mrs A very sleepy, so he suggested replacing it with pregabalin.[9] Dr B again documented that the plan was to try to exhaust all the medical options before considering further laparoscopic surgery.

17 August 2020 appointment

7.               Mrs A had been experiencing bleeding and pain and booked an early follow-up appointment for 17 August 2020. She had tried switching from Cerazette to Ginet,[10] which she had been on previously, but this did not stop the bleeding or pain. Dr B documented:

‘[Mrs A] was very emotional today and she and her husband are very determined that she wants a hysterectomy. They are quite sure that they have completed their family — they have [two children] who are both healthy. They have obviously thought about this option for a while and are very clear about what they want.

I have spent a long time with the couple today in my room, trying to convince them to re-think that option as it is obviously irreversible.’

8.               At this appointment, Dr B also explained that although ‘hysterectomy [would] definitely sort out the bleeding … there [would still be] a small chance that the pain could persist’. Dr B documented: ‘[Mrs A] does understand that well and she told me today that this is her best shot to improve her quality of life.’

9.               Dr B and Mrs A also discussed Mirena insertion as a possible treatment. Dr B documented:

‘I have re-explored the Mirena option again. Initially [Mrs A] was not agreeable to the Mirena option; however I explained that offering a hysterectomy at [her age] is a case that will need to be discussed in the Endometriosis MDM[11] and will need to have some consensus from different consultants to agree to offer this kind of treatment at this age. Obviously, having not tried the Mirena will make agreeing to this more difficult.’

10.             Mrs A told HDC that she had declined a Mirena on multiple occasions previously and she felt that Dr B ‘verbally coerced’ her into agreeing to the Mirena insertion. Her understanding from their conversation was that Dr B would present her case to the MDM if she tried the Mirena. She felt that if she did not agree to try the Mirena, Dr B would not entertain the idea of a hysterectomy. She stated:

‘He promised me that if I tried the Mirena for a period of three months he would present my case to a Board of gynaecologists in [the area] to talk about my hysterectomy. I was essentially being blackmailed into agreeing to a form of medication I did not want, for if I refused he wouldn’t even entertain the idea of a hysterectomy. I begrudgingly accepted.’

11.             Dr B told HDC:

‘[Mrs A] was keen to proceed with the mirena insertion on that day after our discussion, and I didn’t receive any impression of uncertainty, hence I attempted insertion.’

12.             Dr B documented that Mrs A ‘did not tolerate the procedure’, so he booked her for a Mirena insertion under general anaesthetic the following day at the private hospital, which went ahead as planned.

13.             Mrs A told HDC:

‘[The attempted insertion by Dr B was] the single most painful thing I have experienced. I was screaming and writhing in pain clinging to the hand of my husband begging for it to be over.’

14.             Mrs A said that she felt ‘a complete loss of bodily autonomy’. She told HDC that she thought that if she wanted a hysterectomy then she had to ‘grin and bear it’.

15.             In response to Mrs A’s account of the attempted Mirena insertion, Dr B stated:

‘I am so sorry that [Mrs A] experienced significant pain and distress when I attempted to insert the Mirena in clinic. I always ask my patients to tell me to stop if the procedure is not tolerable. I abandoned the procedure when [Mrs A] asked me to stop.’

16.             Dr B documented that he would refer Mrs A’s request for a hysterectomy to the endometriosis MDM at the public hospital by the end of the month. Dr B also prescribed Provera[12] and codeine[13] for pain management at this appointment.

17.             Mrs A told HDC that following this appointment, she ensured that she had a family member with her for every future appointment, as she felt that Dr B ‘has the tendency to railroad your thinking if you are alone’.

Multidisciplinary meeting — 2 September 2020

18.             Dr B presented Mrs A’s case at the endometriosis MDM at the public hospital on 2 September 2020. The case presented was: ‘Patient requesting hysterectomy for ongoing pain and [abnormal uterine bleeding]’, and the question asked was: ‘If patient not satisfied with the mirena and still demanding hysterectomy in light of her young age? Endometriosis confirmed histologically, and family complete.’ The MDM’s recommendations were:

‘Next option would be zoladex[14] and add-back HRT.[15] Would need a clinical psychology review and a second opinion from another gynaecologist before proceeding with a hysterectomy.’

28 September 2020 appointment

19.             The Mirena was removed at this follow-up appointment as Mrs A had experienced side effects that affected her daily life. Dr B documented that Mrs A wanted the Mirena to be removed because it made her bloated, affected her mood and skin, and did not help with the pain. Mrs A stated that she wanted it to be removed because she had bled for the six weeks since the Mirena insertion.

20.             Mrs A asked Dr B about the outcome of the MDM. Dr B stated that he discussed the MDM recommendations with her and that she seemed to accept them. His documentation of this discussion states:

‘[A]s expected, the consensus from the MDM was not to proceed with a hysterectomy at this age. I have discussed these recommendations with [Mrs A] today and she was accepting of this.’

21.             Conversely, Mrs A does not recall any discussion of the recommendations made by the MDM and stated that when she asked Dr B about the outcome of the MDM, ‘he casually replied that he had asked them and they said no’. She was skeptical that Dr B had taken her case to the MDM given that she received nothing in writing and no further information.

22.             There is no documentation outlining what specific MDM recommendations were discussed and whether those recommendations were progressed. Mrs A also asked Dr B about a second laparoscopy and possible excision of any further endometriosis, which Dr B agreed was appropriate, and he booked this for 23 November 2020. Dr B also suggested that Mrs A take gabapentin[16] and restart Cerazette since the Mirena had been removed. He also referred Mrs A to a pelvic floor physiotherapist and a psychotherapist who deals with chronic pelvic pain.

Surgery and postoperative care — 23–24 November 2020

23.             On 23 November 2020 Dr B performed a second laparoscopic excision.[17] Dr B’s operation notes do not document any complications, and record that the procedure was ‘all performed safely’.

24.             Within a few hours of waking from the surgery, Mrs A noticed that her right thigh was ‘completely numb’. She mentioned this to Dr B when he came to see her the following morning. Mrs A recalls that he was ‘very surprised’, then left and came back 15 minutes later with a printout about positional nerve damage. Mrs A stated: ‘He didn’t explain much more other than the feeling should return soon.’

25.             Dr B stated that when Mrs A told him about the numbness, he explained the possibility of meralgia paresthetica.[18] He said that he apologised to her, gave her written information on this complication, and explained that most cases resolve spontaneously.

26.             Dr B said that this was the second time in his career that he had encountered nerve damage secondary to lithotomy positioning. The previous instance had been about eight months earlier in March 2020. Dr B stated that he teaches his registrars and fellows that the patient’s positioning is primarily the surgeon’s responsibility, and his usual practice is to review the position of the patient before scrubbing for surgery.

30 November 2020 appointment

27.             At this postoperative follow-up appointment, Dr B documented that he explained the nature of the surgical complication and how it occurred, which he believed was ‘likely due to compression of the nerve, secondary to lithotomy position[19]’. In a letter to Mrs A’s physiotherapist on 30 November 2020, Dr B noted that this was unfortunate as Mrs A’s surgery was not long, and he was ‘pretty sure she was correctly positioned’.

28.             Mrs A told HDC that she was unaware that she would be in the lithotomy position during surgery. Dr B told HDC:

‘[Mrs A] was unaware that laparoscopic Gynaecological procedures are normally performed while patients are positioned in the lithotomy position. This position allows the operating surgeon to access the deep pelvis and facilitates mobilizing the uterus.’

29.             Mrs A stated that while she understands the reason for the positioning and mobilisation of the uterus, she was not informed that anything would be done vaginally and felt that her consent should have been requested for this, or she should at least have been informed that this would occur.

30.             The ‘agreement to treatment form’ signed by Mrs A states that the risks discussed were infection, bleeding, and damage to organs (bowels, bladder, uterus). There was no mention of positioning, a potential risk of nerve damage from being in the lithotomy position, or that instruments would be used vaginally.

31.             Dr B apologised for not having discussed positioning with Mrs A preoperatively and said that in future he will explain to his patients that this is how they are likely to be positioned during surgery.

32.             Dr B told HDC that he explained the role of gabapentin in managing the complication and referred Mrs A to physiotherapy for management of her chronic pelvic pain, and to expedite gaining sensation in her thigh.

21 December 2020 appointment

33.             At this follow-up appointment, Dr B recorded that Mrs A’s pelvic pain had improved significantly apart from one spot that was painful intermittently, and she was continuing with Cerazette and taking tramadol[20] for pain. Dr B documented that he told Mrs A: ‘[A] hysterectomy still remains the last card that we can play; however I would like to leave that as far as possible.’

34.             Dr B booked Mrs A a follow-up appointment in April 2021. However, following the appointment on 21 December 2020, Mrs A informed Dr B that she did not want any further follow-up with him as she was seeing another gynaecologist.

Further information from Mrs A

35.             Mrs A understood that Dr B’s reason for declining her a hysterectomy was due to her age and an assumption that she might want more children in the future.

36.             Mrs A told HDC that she understands the reservations about a hysterectomy for someone her age but feels that Dr B failed to take into account the individual circumstances of her case as a whole. She said that she understood that a hysterectomy would ‘change [her] life’, and that it was not a decision made lightly. She said that she understood that a hysterectomy would fix the bleeding but might not fix the pain. She stated that she would still have been happy to proceed with the procedure on that basis. Mrs A feels that the second laparoscopic surgery would not have been needed if she had been allowed to have a hysterectomy, and that therefore she would not have suffered the nerve damage in her thigh, which she stated has not resolved spontaneously and is permanent.

Further information from Dr B

37.             Dr B acknowledged that he was ‘not entirely agreeable’ to offer the option of a hysterectomy ‘based on Mrs A’s young age, and the possibility of failure of that approach of relieving pelvic pain symptoms’. Regarding his clinical rationale for declining a hysterectomy, Dr B stated:

‘Offering a radical irreversible treatment like hysterectomy is not an easy option to offer to a relatively young patient with chronic pelvic pain.

In my experience some patients have regretted that decision in the past especially when performed at [a] relatively young age. Also, there is no guarantee that removing the uterus will cure the pelvic pain. Consequently, as a routine practice in [this region], we tend to discuss these requests in a monthly endometriosis MDM and consensus was to offer alternative options at that stage. [Mrs A] appeared to be content to adopt that course when I explained it to her. Had those options that were agreed with [Mrs A] been unsuccessful then the hysterectomy option would have been revisited with the MDM.’

38.             Dr B stated: ‘I would like to finish with a sincere apology to [Mrs A] for the distress that she has experienced.’

Responses to provisional opinion

Mrs A

39.             Mrs A was given an opportunity to comment on the information gathered during the investigation, as set out in this report. Mrs A stated:

‘After leaving the care of [Dr B] I have since had a hysterectomy. The very surgery I fought so hard to receive from [Dr B] was given to me without the need to exhaust other medical options and without the need for further discussion around my competency to make this decision about my own body … Interestingly further biopsy testing on my removed uterus revealed the presence of Adenomyosis — a condition only treated by a hysterectomy.’

40.             Mrs A told HDC that the hysterectomy has been life changing. She said:

‘I can now be the active, healthy, present mother I had always hoped to be for my two children. My pain has significantly reduced and I am no longer bound by my dysfunctioning body. It is so disappointing that this level of freedom was not afforded to me sooner.’

41.             Mrs A advised that her nerve damage from the 2020 surgery is permanent and has not improved since then.

Dr B

42.             Dr B was given an opportunity to comment on the provisional opinion. Where appropriate, his responses have been incorporated into the report. Dr B stated: ‘[Mrs A’s] case illustrates the challenges doctors face in the care of patients with endometriosis and chronic pain.’ He noted that HDC’s independent advisor ‘felt comfortable with the care [Dr B] provided to Mrs A’s (discussed further below).

Opinion: Dr B — breach

43.             To assist my assessment of this case I sought independent advice from obstetrician and gynaecologist Dr Richard Dover. His advice is included as Appendix A. Although Dr Dover did not identify any departures from the standard of clinical care, I am concerned that Dr B did not:

a)        Provide Mrs A with information that a reasonable person in her circumstances would expect to receive regarding the options to treat her bleeding and pain; and

b)        Provide Mrs A with honest and accurate answers to her questions about the MDM.

44.             I discuss my concerns below and explain why I consider that Dr B breached Rights 6(1)(b),[21] 6(3),[22] and 7(1)[23] of the Code of Health and Disability Services Consumers’ Rights (the Code).

45.             I am also critical of the information provided to Mrs A in relation to her laparoscopic surgery on 23 November 2020, and comment on the standard of care in relation to positioning during this surgery and the attempted Mirena insertion.

46.             As a general introductory comment, it appears to me that Dr B was unduly influenced by his own views about what he perceived to be the best course of action for Mrs A, without giving due consideration to Mrs A’s wishes. In response to the provisional opinion, Dr B’s legal representative stated that when a patient has requested a permanent, life-altering procedure it is reasonable for a medical practitioner to recommend a patient consider alternative options, and likely they would be critiqued if they did not. Dr B’s legal representative stated: ‘[T]he fact that [Dr B] presented alternative options to [Mrs A] does not demonstrate that he did not have due consideration of [Mrs A’s] wishes.’

47.             I agree that it is important to discuss the available options with the consumer. I acknowledge in these circumstances that ensuring the patient was aware of the different options was very important, but it was also important that Dr B gave sufficient weight to Mrs A’s wishes and preferred treatment option. Having considered all the facts of this case, I am not satisfied that sufficient weighting was given by Dr B to the wishes of Mrs A, who should have been at the centre of the decisions made about her care.

Information about options to treat bleeding and pain — breach

48.             At the appointment on 17 August 2021, Mrs A requested a hysterectomy. Dr B then discussed Mrs A’s options with her. The information given about these options is discussed below.

Hysterectomy

49.             When Mrs A raised with Dr B that she wanted a hysterectomy, Dr B spent much of the appointment trying to get her to re-think this option. Mrs A understood that Dr B did not want to proceed to hysterectomy due to her age and an assumption that she might want more children in the future. Dr B acknowledged that he was ‘not entirely agreeable’ to offer the option of a hysterectomy based on her age and the possibility that it would not relieve the pelvic pain symptoms.

50.             Dr B documented that Mrs A was aware that a hysterectomy is irreversible and understood that there was a possibility it might not fix the pain, but that she still felt that a hysterectomy was the best option for her quality of life. Dr B also documented that Mrs A and her husband ‘are quite sure that they have completed their family … they have obviously thought about this option for a while and are very clear about what they want’.

51.             Dr Dover advised:

‘I would feel that most gynaecologists would not rush to offer hysterectomy to a woman of [her] age. Equally, I feel that this option should not be withheld purely on the basis of age and that ongoing discussion about it, particularly after counselling and perhaps a second opinion, would make this a reasonable option to discuss openly.’

52.             Dr B stated:

‘… I believe most if not all gynaecologists would be reluctant to offer hysterectomy to [a woman of her age] before trialling some of the conservative options. My reluctance to offer hysterectomy was more based on not yet trialing other known options, and not solely based on [Mrs A’s] young age.’

53.             Dr Dover advised that the discussion Dr B had with Mrs A and her husband on 17 August 2020 seemed to be based on convincing Mrs A to re-think a hysterectomy, and that there was no documentation of the benefits that Mrs A would have accrued from a hysterectomy, which could have been weighed against the disadvantages. Dr Dover stated:

‘I think we need to be quite careful that we do not become overly patriarchal and viewed from a different perspective, we are discussing the case of a … woman [in her twenties] who already has two children.’

54.             Dr B disagreed that there was no documentation about the benefits that Mrs A would gain from a hysterectomy, as he did mention that a hysterectomy would cure the bleeding.

55.             Dr Dover acknowledged that Dr B did mention that a hysterectomy would stop the bleeding.[24]

56.             Dr B’s notes from this appointment give an impression that Mrs A’s case needed to be presented to the MDM in order to proceed to hysterectomy. The notes state:

‘I explained that offering a hysterectomy at [her age] is a case that will need to be discussed in the Endometriosis MDM and will need to have some consensus from different consultants to agree to offer this kind of treatment at this age.’

57.             However, there is no evidence to suggest that there was a clinical requirement to present Mrs A’s case to the MDM. Dr B referred to it as ‘routine practice’. Further, Dr Dover advised that whilst there is an increasing move towards using MDMs, which suggests they may be a useful tool, there is not a set requirement for cases to be presented to an MDM before proceeding to hysterectomy.

58.             In response to the provisional opinion, Dr B stated:

‘I consider my approach to discuss [Mrs A’s] request for a hysterectomy at the MDM and revisit the option with her at a later stage was appropriate. This gave me the opportunity to discuss [Mrs A’s] individual circumstances with colleagues, to determine what they felt was appropriate. It also provided [Mrs A] with a further opportunity to consider her options. It is important to acknowledge that regret about permanent procedures in gynaecology regarding fertility are well known and need to be discussed with great sensibility.’

59.             Overall, Dr Dover believes that the management and options that were offered were reasonable. I acknowledge his advice. However, it is important to note that Dr B did not present hysterectomy as a viable option at that time. Instead, he told Mrs A that her case would require further discussion in an MDM and consensus from different consultants before they could proceed with hysterectomy. However, there is no evidence to support that this was a requirement.

60.             I consider that Dr B failed to inform Mrs A that her case did not require presentation to an MDM or the need for consensus in order to proceed with a hysterectomy. It appears that hysterectomy was an available option, irrespective of the need for MDM or consensus. In my view, this is the kind of information that a reasonable person in Mrs A’s circumstances would expect to receive, particularly as she specifically requested a hysterectomy.

61.             Further, I am concerned by Dr B’s general approach to the question of a hysterectomy. I consider that Dr B did not approach the discussion around hysterectomy with an open mind, or give sufficient consideration to Mrs A’s particular circumstances — those being that Mrs A had completed her family; she understood well that a hysterectomy was irreversible and would cure her bleeding but there would still be a small chance that her pain would persist; and that she had considered this option for some time and was very clear about what she wanted.

Mirena

62.             Mrs A told HDC that she had declined a Mirena on multiple occasions, and she felt that at the 17 August 2020 appointment Dr B ‘verbally coerced’ her into agreeing to a Mirena insertion. Her understanding from the conversation with Dr B was that he would present her case to the MDM only if she tried a Mirena, and that if she did not agree to try a Mirena, Dr B would not consider a hysterectomy. Mrs A stated:

‘He promised me that if I tried the Mirena for a period of three months he would present my case to a Board of gynaecologists in [the area] to talk about my hysterectomy. I was essentially being blackmailed into agreeing to a form of medication I did not want, for if I refused he wouldn't even entertain the idea of a hysterectomy. I begrudgingly accepted.’

63.             Dr B told HDC that Mirena insertion was not a prerequisite for discussing Mrs A’s case at the MDM, but he believed that a Mirena would likely have been recommended if it had not already been trialled. In relation to a possible MDM consideration of her case for a hysterectomy, Dr B documented: ‘Obviously, having not tried the Mirena will make agreeing to this more difficult.’ He also documented that after a long discussion, they agreed to trial a Mirena, with the hope that it would settle the bleeding and improve the pain and Mrs A’s quality of life. Dr B told HDC:

‘When I offered a mirena insertion I was hoping to help [Mrs A] with her pain, and bleeding as potentially ongoing conservative treatment, and not as a temporary measure or to facilitate the hysterectomy request. Mirena is considered one of the successful treatment options for pain, and bleeding and has worked extremely well for many of our patients.’

64.             Dr Dover advised:

‘[Mrs A] had already had a laparoscopy with excision of some endometriosis and had been managed medically on the contraceptive pill. I suspect many clinicians would move next to the Mirena coil as an option and would perhaps have considered adding in some adjuvant hormonal therapy to deal both with the pain and with the bleeding. I think that would be a fairly mainstream practice.’

65.             Dr Dover agreed that if a Mirena had not already been trialled, this would have been the most likely recommendation from the MDM. He stated, from a personal perspective:

‘[I]t is entirely reasonable to trial the use of a Mirena coil before going down the route of definitive surgery, particularly in someone [of this age]. There is a real chance that there may be a degree of regret in the future.’

66.             Dr Dover advised that Dr B’s rationale would have been to, in theory, remove one of the perceived barriers to the MDM agreeing to a hysterectomy.

67.             However, Dr Dover also advised that most gynaecologists would not feel that it would be mandatory for patients to have trialled a Mirena before proceeding with a hysterectomy, as there may be several ‘very valid reasons’ why patients would not want a Mirena, and as such it could be reasonable to move directly to a surgical option. He stated that the trialling of a Mirena should not preclude going down the route of a hysterectomy. Dr Dover advised:

‘I think we also need to be careful that as individual clinicians we are there to advocate for the individual patient whom we are seeing, who may have very valid reasons for not wanting to go down that route.’

68.             Dr Dover said that even in the case that an MDM recommendation was made for Mirena to be trialled, the presenting clinician should perhaps have some degree of ‘push back’ towards the MDM. Dr Dover stated:

‘I think it’s very reasonable to present the case for advice and second opinion, and a degree of peer review, and to act as a sounding board for ongoing management. I suspect, however, there must always be the option for each individual clinician to choose not to follow the advice that has been given.’

69.             I accept Dr Dover’s advice that the MDM would have likely recommended trialling a Mirena if it had not been done already, and that it is entirely reasonable to suggest trialling the use of a Mirena coil before going down the route of definitive surgery. Therefore, I consider that it was reasonable and appropriate for Dr B to recommend a Mirena to Mrs A. However, it is my view that the information Dr B provided to Mrs A about trialling a Mirena made it seem that this was a prerequisite to her case being presented at an MDM, and subsequently to proceed to hysterectomy.

70.             Considering that there was no requirement for Mrs A’s case to be presented at an MDM before proceeding to hysterectomy (as discussed above), and Dr Dover’s advice that most gynaecologists would not feel that trialling a Mirena is a prerequisite to hysterectomy, it is my view that there was no requirement for Mrs A to trial a Mirena before proceeding to hysterectomy, and that Dr B failed to provide this information to Mrs A. I consider that this is the kind of information that a reasonable person in Mrs A’s circumstances would expect to receive, particularly given that at the beginning of the appointment, and on multiple previous occasions, Mrs A had clearly expressed that she did not want to trial a Mirena.

Summary

71.             It is my view that Mrs A had a right to receive an explanation of the available option of a hysterectomy. Dr B acknowledged that he was not entirely inclined to offer the option of a hysterectomy. He told Mrs A that her case needed to be presented to an MDM and receive a consensus from consultants before progressing to a hysterectomy, and that having not tried a Mirena would make a consensus to a hysterectomy more difficult. In response to the provisional opinion, Dr B’s legal representative stated:

‘While there may be no evidence that bringing a case to an MDM, or considering the option of a Mirena, are pre-requisites to proceeding to a hysterectomy, these options are entirely reasonable to present to a patient in the circumstances. This much is reinforced by Dr Dover, and by [Dr B’s] colleagues. We do not accept that [Dr B] presented these options as a pre-requisite, but rather as a strong recommendation.’

72.             From the evidence available to me, Mrs A did not understand that a hysterectomy was an option available to her, and she left her consultations with Dr B believing that it required discussions at an MDM, and then a trial of a Mirena before this option would be entertained. I therefore do not accept that Dr B presented the options as a strong recommendation rather than pre-requisites. While I accept that these were reasonable steps to consider, my concern is around the information given and how this was communicated to Mrs A. In the circumstances, there was no requirement to go to MDM or to try a Mirena before proceeding with a hysterectomy. In my view, a reasonable consumer in Mrs A’s circumstances would have expected to receive an explanation of a hysterectomy as an available option, and I am not satisfied that it was presented as an available option. By failing to discuss this information with Mrs A, Dr B breached Right 6(1)(b) of the Code.

73.             In addition, by failing to discuss with Mrs A that there was no requirement to trial a Mirena before proceeding to hysterectomy, Mrs A was unable to make an informed choice and give informed consent to the Mirena insertion, and therefore I consider that Dr B breached Right 7(1) of the Code.

Answers to questions about MDM — breach

74.             Dr B presented Mrs A’s case at the endometriosis MDM at the public hospital on 2 September 2020. The MDM recommended:

‘Next option would be zoladex and add-back [hormone replacement therapy]. Would need a clinical psychology review and a second opinion from another gynaecologist before proceeding with a hysterectomy.’

75.             In the notes from the appointment following the MDM (28 September 2020), Dr B documented that the consensus from the MDM was ‘not to proceed with a hysterectomy at this age’, and that he discussed the recommendations with Mrs A, and she was accepting of them.

76.             Mrs A stated that she asked Dr B about the outcome of the MDM and ‘he casually replied that he had asked them and they said no’. Mrs A told HDC that she was skeptical that Dr B had taken her case to the MDM at all, given that she received nothing in writing and no further information than this. Mrs A has no recollection of the MDM recommendations being discussed. She told HDC that if this option had been presented to her, she would have wanted to pursue a second opinion.

77.             In response to the provisional opinion, Dr B’s legal representative stated: ‘[Mrs A] would have been aware, as most consumers are, that she was entitled to obtain a second opinion from another practitioner at any point.’ This comment is concerning. Providers should not assume that consumers are aware of all their options, and it does not discharge them of their obligation to inform them of those options.

78.             Dr B stated that he agrees that a second opinion would have been beneficial. However, he said that when Mrs A asked about a second laparoscopy at this appointment, he felt that they had reached an agreement on a plan going forward, and that ‘a second opinion might just cause a delay, as [he] felt a second clinician would likely agree with [their] plan’.

79.             Dr Dover agreed that organising a second opinion would have slowed down the procedure, but said that equally, the pathology and symptoms in question were a quality-of-life issue rather than a life-threatening one, and the offer of a second opinion may or may not have been something that would have been taken up.

80.             Dr Dover advised:

‘I have no reason to doubt that the case was presented [to the MDM]. My comments relate, based on the information and the comments made by [Mrs A], … that the way in which the information was passed on could perhaps be improved. Certainly from [Mrs A’s] perspective she seems to have some mistrust, … and stated in her complaint “I struggled to believe that he took my case to the Board at all.”

Again, without having been present, it is very difficult for me to decide what has or hasn’t happened, but it certainly appears that there is perhaps some potential for the channels of communication to be improved.

A reasonable suggestion would be for the specialist to write to the patient concerned immediately following the meeting with a short note, such as “I discussed your case at the Board today and the recommendation was … I would be very happy to discuss this with you at our next appointment on …”.’

81.             The MDM recommendations are not specifically documented anywhere in Dr B’s notes from this appointment, and there is no mention of them being progressed. Dr B did refer Mrs A to a psychotherapist, although this was for chronic pelvic pain rather than a clinical psychology review with a view toward hysterectomy. In response to the provisional opinion, Dr B said:

‘I did discuss the recommendations of the MDM with [Mrs A], as noted in my clinical letter. I acknowledge that I could have elaborated further about the details of the conversation in my clinical letter.’

82.             Dr B said that when discussing the outcome of the MDM, Mrs A asked if a second laparoscopy would be a possible approach, and he believed it was an appropriate next step, and so he offered her this option.

83.             On the balance of probabilities, it remains my view that Dr B did not inform Mrs A of the MDM recommendations accurately, given that Mrs A has no recollection of the MDM recommendations being discussed. She does recall that Dr B advised that the outcome of the MDM discussion was ‘they said no’ to a hysterectomy. There was no specific mention of the MDM recommendations in Dr B’s documentation of this appointment. In addition, the documentation in the clinical record states that the consensus from the MDM was ‘not to proceed with a hysterectomy at this age’, when in fact the MDM recommendation was for medication and then a second opinion and clinical psychology review ahead of considering hysterectomy. Further, there is no evidence of the MDM recommendations being progressed. Mrs A stated that if the option of a second opinion had been presented to her, she would have wanted to pursue this.

84.             I accept Dr Dover’s advice that organising a second opinion would have slowed down progress toward a second laparoscopy, but equally that this was a quality-of-life issue rather than a life-threatening one. Mrs A should have been informed of the MDM recommendation for a second opinion so that she could choose whether to proceed with the second opinion or the laparoscopic surgery. I do not accept that because most consumers are aware of being able to seek a second opinion, this meant that Dr B did not have to tell her about this option recommended by the MDM.

85.             I consider that Dr B did not provide Mrs A with honest and accurate answers to her questions about the outcome of the MDM, and, therefore, I find that Dr B breached Right 6(3) of the Code.

Information on positioning and use of instruments vaginally during laparoscopic surgery — other comment

86.             Mrs A told HDC that she was not informed before the operation of 23 November 2020 that she would be placed in the lithotomy position or that instruments would be used vaginally to mobilise the uterus. She felt that she should have been informed of this and her consent requested.

87.             There is little recorded information on what was discussed with Mrs A preoperatively. The ‘agreement to treatment form’ signed by Mrs A states that the risks discussed were infection, bleeding, and damage to organs (bowels, bladder, uterus). There was no mention of positioning, a potential risk of nerve damage from being in the lithotomy position, or that instruments would be used vaginally.

88.             Dr B stated:

‘[Mrs A] was unaware that laparoscopic Gynaecological procedures are normally performed while patients are positioned in the lithotomy position. This position allows the operating surgeon to access the deep pelvis and facilitates mobilizing the uterus.’

89.             Regarding the lithotomy position and the risk of nerve injury, Dr Dover advised that it is an uncommon but clearly recognised complication of surgery. However, Dr Dover also advised that it is not in his own, nor any of his professional partners’ practice, to warn patients about this specifically. Dr Dover does not think that failing to mention the specific possibility of a nerve injury would be considered a deviation from standard practice.

90.             Dr B has apologised for not discussing with Mrs A preoperatively that laparoscopic gynaecological procedures are normally performed while patients are positioned in the lithotomy position, and he said that in future he will explain this to his patients.

91.             Dr Dover advised that although it would be reasonable to expect a preoperative general discussion about how the laparoscopy would be performed, he is ‘not convinced’ that it is routine practice to inform patients that instruments are inserted vaginally to help manipulate the uterus during surgery. Dr Dover also noted that the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) information sheet on laparoscopy does not mention this.

92.             I am critical that Dr B did not inform Mrs A about the use of instruments vaginally during laparoscopy. The fact that instruments would be used vaginally was important for Mrs A to know preoperatively, noting that her expectation was to undergo a procedure involving incisions in the abdomen. Mrs A should have been informed about what was going to happen during the laparoscopy, especially when instrument insertion and sensitive areas are involved. However, I acknowledge Dr Dover’s advice that it is not routine practice to inform patients of the use of instruments vaginally during laparoscopy. I also acknowledge that this information is not included in the RANZCOG information sheet on laparoscopy. These factors mitigate my criticism of Dr B in this matter.

93.             However, I am critical that the RANZCOG information sheet does not include information that instruments are routinely used vaginally to manipulate the uterus during laparoscopic surgery, and the lack of guidance from RANZCOG regarding the need to inform patients of this. As stated above, patients should be informed about what is going to happen during laparoscopic surgery, especially when instrument insertion and sensitive areas are involved. I consider that the use of instruments vaginally is information that a reasonable consumer in these circumstances would expect to receive, and therefore, as set out in Right 6(1) of the Code, it is information that needs to be provided to patients. 

94.             As such, I have made a recommendation for RANZCOG to review its guidance to practitioners (including information sheets), to ensure that there a clear expectation for patients to be informed whenever instruments will be used vaginally.

Standard of care regarding positioning during laparoscopic surgery — other comment

95.             Dr B stated that this was the second time in his career that he had encountered nerve damage secondary to lithotomy positioning. The previous instance was about eight months previously in March 2020. Dr B stated that he teaches his registrars and fellows that the patient’s positioning is primarily the surgeon’s responsibility, and his usual practice is to review the position of the patient before scrubbing for surgery. Dr B documented in a letter to Mrs A’s physiotherapist that he was ‘pretty sure’ she was positioned correctly during the surgery on 23 November 2020.

96.             Dr B told HDC that since these incidents he has been ‘more vigilant about positioning [his] patients’. He understands that it is unlikely to be possible to eliminate the risk of this complication completely but said that correct positioning and shorter operating times reduce the risk.

97.             Dr Dover advised that this complication is an uncommon but known risk. He raised no concern with the standard of care in this case in relation to this complication. In response to the provisional opinion, Dr B stated: ‘[C]onsidering the variations in normal anatomy, nerve entrapment is a complication that will not be preventable in every patient, despite standardised positioning.’

98.             I acknowledge Dr Dover’s advice, and unfortunately I am not in a position to make a finding as to whether or not Dr B positioned Mrs A correctly. I recognise that nerve damage from positioning is a risk of laparoscopic surgery, and it is very unfortunate that it is a complication Mrs A suffered. However, the fact that Mrs A experienced this complication is not sufficient evidence for me to conclude that she received inappropriate care.

Standard of care regarding Mirena insertion — other comment

99.             Mrs A told HDC that she had declined a Mirena on multiple occasions, but following a lengthy discussion with Dr B on 17 August 2020, she agreed to the procedure. At the same appointment, Dr B attempted to insert the Mirena. Mrs A described the attempted insertion as ‘the single most painful thing [she had] experienced’. She stated: ‘I was screaming and writhing in pain clinging to the hand of my husband begging for it to be over.’ Dr B documented that Mrs A ‘did not tolerate the procedure’, and he booked her for an insertion under general anaesthetic the following day at a local hospital. Dr B told HDC that he is sorry that Mrs A experienced significant pain and distress during the attempt and stated that he always asks his patients to tell him to stop if the procedure is not tolerable, and he abandoned the procedure when Mrs A asked him to stop.

100.          Dr Dover advised that with the benefit of hindsight, it may have been better to delay the Mirena insertion. He said that in patients with a history of two Caesarean sections, such as Mrs A, cervical dilation could be more difficult and, in those cases, medication can be given an hour or two before the procedure to soften the cervix and facilitate the implantation. Dr Dover advised that taking that approach also would have allowed more time for Mrs A to reflect on her decision and be certain that she was comfortable to go ahead.

101.          I recommend that Dr B take this advice into consideration for the future.

Changes made since events

102.          Dr B apologised that preoperatively he did not specifically discuss with Mrs A the positioning that would be used during surgery. He stated that this was a good learning experience and that he will explain positioning to patients in future.

103.          Dr B told HDC that since these events he has been more vigilant about positioning his patients. He said that during his weekly operating lists he has taught his fellows and other training registrars at the public hospital the correct positioning of patients for laparoscopic procedures, and he includes this in the annual workshops he facilitates with other advanced laparoscopic surgeons in the department.

Recommendations

104.          I recommend that Dr B:

a)        Provide a written apology to Mrs A. This should be sent to HDC, for forwarding to Mrs A, within three weeks of the date of this report.

b)        Re-familiarise himself with the Medical Council of New Zealand’s Good Medical Practice publication and statements on communication and consent, particularly on the expectations of adequately documenting treatment discussions and working in partnership with patients (and colleagues). A written reflection on the learnings and how these will be applied in practice are to be provided to HDC within three months of the date of this report.

105.          In the provisional decision, I recommended that Dr B consider Dr Dover’s suggestion to write to the patient concerned immediately following an MDM with a short note stating what was discussed and what was recommended, and to advise that this could be discussed at the next appointment. In his response to the provisional decision, Dr B accepted that providing Mrs A with a written letter of the recommendations immediately after the MDM may have been a more appropriate way of communicating. He stated: ‘I will definitely adopt this practice in future.’ I therefore consider this recommendation to have been met.

106.          In the provisional decision, I recommended that RANZCOG consider a review of:

a)        The information sheet for laparoscopic surgery, to include information that patients may be placed in the lithotomy position and instruments may be used vaginally; and

b)        Its guidance to practitioners, to ensure that there is a clear expectation for patients to be informed whenever instruments will be used vaginally.

107.          In response to this recommendation, RANZCOG advised that its Women’s Health Committee agree that it should be standard practice for medical practitioners to inform women of the likely position (eg, supine, lithotomy) as part of the consent process for their procedure. Further, it agreed that it should be standard practice to inform women that they may have some type of vaginal instrumentation placed during the procedure. RANZCOG advised HDC that it will update its patient information pamphlet on laparoscopy to include:

a)        Potential use of vaginal instrumentation during laparoscopy;

b)        Potential to be placed in a lithotomy position;

c)         Risk of nerve injury as a common complication of laparoscopic surgery, in particular, injury to nerves of the entry abdominal wall; and

d)        Standard RANZCOG advice on informed consent.

108.          RANZCOG advised that it will share this update with its members, draw their attention to the above guidance of the Women’s Health Committee, and report back to HDC within six months of the release of this report.

Follow-up actions

109.          A copy of this report with details identifying the parties removed, except the advisor on this case, will be sent to the Medical Council of New Zealand. It will be advised of Dr B’s name in covering correspondence.

110.          A copy of this report with details identifying the parties removed, except the advisor on this case, will be sent to Health New Zealand│Te Whatu Ora and RANZCOG, and will be placed on the Health and Disability Commissioner website, www.hdc.org.nz, for educational purposes.

 

 

 

The following further advice was provided by Dr Dover on 24 February 2023:

‘Thank you for supplying me with [Dr B]’s feedback.

I have read through his comments and I have decided to respond to them all individually.

1.  a) My difficulty, in this case, has been looking at the documented correspondence rather than listening into the conversations as they may have taken place. As such I have based my report on the written information that has been provided to me.

With regard to the insertion of the Mirena, I have on one hand, some information from [Mrs A]: “He verbally coerced me into having a Mirena inserted, even though I have stated on multiple occasions, that I don’t want a form of birth control inserted into my body. He promised me that if I tried the Mirena for a period of three months he would present my case to a Board of gynaecologists in the … area to talk about my hysterectomy. I was essentially being blackmailed into agreeing to a form of medication I did not want, for if I refused he wouldn’t even entertain the idea of a hysterectomy. I begrudgingly accepted.”

On the other hand, I have correspondence from [Dr B]: “I have spent a long time with the couple today in my rooms, trying to convince them to re-think that option, as it is obviously irreversible. I have re-explored the Mirena option again. Initially [Mrs A] was not agreeable to the Mirena option; however, I explained that offering a hysterectomy at [her] age … is a case that will need to be discussed in the Endometriosis MDM and will need to have some consensus from different consultants to agree to offer this kind of treatment at this age. Obviously, having not tried the Mirena will make agreeing to this treatment more difficult. After a long discussion, we have agreed to give the Mirena a go, hoping it will settle the bleeding and improve the pain, as well as the quality of life; however, she wanted me still to discuss her case in the Endometriosis MDM at [the public hospital] to get some consensus that if the Mirena did not help, we can offer a hysterectomy for [Mrs A]. I have agreed to this and have tried to insert a Mirena today in my rooms; however [Mrs A] was very sensitive and did not tolerate the procedure so I had to abandon this today. We have decided to have a Mirena insertion under a general anaesthetic tomorrow at [the private hospital].”

It is obviously very difficult, from my perspective, to work out which one of these statements is most accurate.

From a personal perspective I would like to add that I think it is entirely reasonable to trial the use of a Mirena coil before going down the route of definitive surgery, particularly in someone [of Mrs A’s age]. There is a real chance that there may be a degree of regret in the future. I am also comfortable that it should not preclude going down the route of a hysterectomy.

I have personally been involved with MDM meetings and I fully agree with [Dr B] that the most likely decision from the Multidisciplinary Meeting would be a recommendation that a Mirena should be trialled, before proceeding to hysterectomy. [Dr B’s] rationale here is that by going down this route it eliminates one of the potential options that the MDM meeting could come up with and, in theory, should remove one of the perceived barriers to them agreeing to the option of a hysterectomy.

Again, from having been involved in MDM meetings I understand this is how things will work, but I think we also need to be careful that as individual clinicians we are there to advocate for the individual patient whom we are seeing, who may have very valid reasons for not wanting to go down that route. As such, the presenting clinician should perhaps have some degree of “push back” towards the MDM meeting. I think we also need to look at what level of commitment there is to the MDM outcomes and whether or not any individual clinician is bound to follow them. I think it’s very reasonable to present the case for advice and second opinion, and a degree of peer review, and to act as a sounding board for ongoing management. I suspect, however, there must always be the option for each individual clinician to choose not to follow the advice that has been given.

1. b) I am again basing my comments on the letter from 17 August 2020. This does mention that the hysterectomy will sort out her bleeding, but it describes “a small chance that the pain could persist”.

b2) I think in the context of chronic pelvic pain the risk of ongoing pain is probably going to be higher than “small”. I am also aware that this was not a formal counselling or consenting appointment, where issues such as the inability to have further children, other than via surrogacy would perhaps have been used.

With regard to the second point in 1b2, I think both [Dr B] and myself are broadly in agreement on this point. Answering specifically, I think that in an ideal world the use of alternative medical options such as Mirena hormonal therapy et cetera, should be used before going to definitive surgery. I think it’s clear that [Dr B] and I agree on this. Personally, I would not view those as an absolute contraindication but under those circumstances, would feel comfortable with a second opinion from one of my colleagues, and an assessment by a psychologist.

Again, from a personal experience, I think we need to be quite careful that we do not become overly patriarchal and viewed from a different perspective, we are discussing the case of a [young] woman who already has two children.

1. b3) With regard to clarification of the symptoms, this suggests that the role of hysterectomy would deal with one of her symptoms but clearly the issue is about what degree of pain she may have afterwards.

1.  b4) I think there is an increasing move towards MDM meetings and I think they have some value. There is the potential risk that they will lead to everybody practising in a similar way (this may not be a bad thing), but there does perhaps need to be a degree of clinical override and I think perhaps a degree of transparency with the patient.

In this case, the team members present numbered four specialists, one of whom was [Dr B]. There are, however, 20 potential people put down on the list, which gives an attendance rate of the specialists of 20%. I note that their comments relate to the quorum being two specialists.

I am not looking to belittle the work that is done through these groups and I have no reason to doubt the claims regarding … the efficacy of this Board.

My comments relate to the passage of information from the patient via the gynaecologist, up to the Board.

Again, based on the complainant’s notes, “at my next consultation I once again asked [Dr B] about the hysterectomy and presenting my case to this ‘board of gynaecologists’ he casually replied that he had ‘asked them and they said no’.” In contrast the letter from [Dr B] on 28/09/2020 states “as you are aware from my previous letter, [Mrs A] was requesting a hysterectomy for her pain and l promised to discuss that request at our Gynaecology MDM at the hospital; however, as expected, the consensus from the MDM was not to proceed with a hysterectomy at this age. I have discussed these recommendations with [Mrs A] today and she was accepting of this.”

I have no reason to doubt that the case was presented. My comments relate, based on the information and the comments made by [Mrs A], which may be inaccurate, that the way in which the information was passed on could perhaps be improved. Certainly from [Mrs A]’s perspective she seems to have some mistrust, whether this was justified or not, and stated in her complaint “I struggled to believe that he took my case to the Board at all”.

Again, without having been present, it is very difficult for me to decide what has or hasn’t happened, but it certainly appears that there is perhaps some potential for the channels of communication to be improved.

A reasonable suggestion would be for the specialist to write to the patient concerned immediately following the meeting with a short note, such as “I discussed your case at the Board today and the recommendation was             I would be very happy to discuss this with you at our next appointment on …”

With regard to comment 1c, I think I’ve touched on this in my earlier response to 1a.

2.  Any comments you wish to make on other aspects of [Dr B]’s care:

Again, I suspect that our opinions are very close together.

We would also need to recognise that we are making these comments in retrospect.

I think my words were chosen carefully, “and I do wonder whether [Mrs A]’s perception of this process would have been different”. This obviously means her perception and her feelings about the process, it does not necessarily mean that the clinical outcome would have altered. I also agree that organising a second opinion would undoubtedly have slowed down the procedure, but equally the pathology and symptoms in question were clearly of a quality of life issue rather than a life threatening one and the offer of a second opinion may or may not have been something that would have been taken up.

With kind regards and best wishes,

Yours sincerely

Richard Dover

Obstetrician & Gynaecologist

BM, MRCPI, FRCOG, FRANZCOG

RD/dc’