Solving the consent claim conundrum

29^th November 2023

Surgeons and indeed healthcare professionals of all disciplines have become frustrated with what appears to be an increasing trend for claimants and their lawyers to gain financial compensation by making a claim alleging that informed consent was not obtained prior to treatment.

Following the Montgomery judgment in 2015, victory for the claimant seemed assured in almost all claims where some or all of the allegations related to consent, and the clinical negligence arena has felt decidedly claimant-friendly since that landmark case.

But it’s not all one-way traffic. CFC recently assisted one of our surgeon insureds with a successful defence of such a claim, and this article will explain how and why the claimant’s solicitors decided, in this instance, not to pursue the matter.

The facts

The defendant surgeon performed a rhinoplasty procedure for one of his patients, who was unhappy with his dorsal hump and alar base. The patient was a young, aspiring model, and had high expectations for the aesthetic outcome.

Following his recovery from the surgery, the patient remained unhappy with his nose and was especially aggrieved at the asymmetry and scarring.

The patient complained that the surgery had resulted in a poor aesthetic outcome that negatively impacted his promising modelling career and left him with a psychological injury.

The claim

The claimant instructed a well-known law firm to investigate a clinical negligence claim and they duly served a Letter of Claim, alleging that the surgeon failed to advise the claimant of the risks (asymmetry and scarring) prior to the surgery, and consequently failed to obtain informed consent for the operation.

The Letter of Claim stated that if the claimant been warned of these risks, he would have made the decision not to undergo the surgery.

There was no suggestion that the surgery was not performed with reasonable care and skill, and there were no allegations concerning the surgical technique or the after-care. This was purely a consent claim.

Damages were sought for the cost of revision surgery (at approximately £18,000), 12 sessions of cognitive behavioural therapy for the psychological injury, and unquantified sums for loss of earnings, travel expenses, medication and miscellaneous expenses, as well as damages for the claimant’s pain and suffering.

The investigation

Solicitors were instructed on behalf of the surgeon to investigate and respond to the allegations. As with any consent claim, the records were reviewed in the hope of finding evidence of a robust consent process.

The first indication that this claim might be defensible was the presence in the records of two hour-long consultations, both of which had evidence of discussions of the risks and benefits of surgery.

The risk of scarring was specifically mentioned in these notes, and the claimant had been given literature that discussed both the possibility of asymmetry and the potential need for corrections once the swelling had settled.

At one of the consultations, the claimant was shown photos and videos that demonstrated both excellent and sub-optimal outcomes of the planned operation.

A signed and dated consent form was also present, and it mentioned scarring and asymmetry among the frequently occurring risks of the surgery.

However, it was not all plain sailing. In this instance the claim had been brought quite some time after the operation, so the surgeon could not recall much about this specific patient. In addition, the notes were sparse at points, lacking full sentences and using non-standard abbreviations.

Despite not remembering the details of their discussions, the surgeon was able to confidently state that their usual practice in those circumstances would be to advise of the risks, and this was corroborated by the photos and videos the claimant had been shown.

An independent expert was instructed to provide an opinion, and the report was fully supportive of the defendant surgeon.

The Defence

A reminder that, since Montgomery, to obtain valid consent the surgeon must take reasonable care to ensure that the patient is aware of any material risks of the surgery. Whether a risk is “material” is patient-specific, and it was clear the claimant’s solicitors were relying on the fact that it would be very easy to demonstrate that a young, aspiring model would attach a great deal of significance to a risk of scarring on his face.

A Letter of Response was served denying the allegations. Not only did the records show that the claimant had clearly been advised of the material risks of surgery, but he had actually been shown photos of instances where these risks eventuated. Confident that both the surgeon and the independent expert would make convincing and authoritative witnesses if cross-examined, the allegations were very robustly denied, and the claimant was put to strict proof that he would have declined to undergo the surgery had he received the advice he alleged the surgeon did not give.

The outcome

Following service of the Letter of Response, the claimant’s solicitors eventually confirmed that the claim was discontinued.

This claim demonstrates the value of detailed records and the impact that meticulous record-keeping can have on the outcome of consent claims. While this may sometimes feel like a burden on busy clinicians, an inability to provide contemporaneous documentation plays right into the hands of claimant lawyers and makes defending consent claims all but impossible.