If it was not bad enough to have suffered either a fracture or dislocation, studies suggest that the mismanagement of orthopaedic injuries is resulting in an increasing number of claims for clinical negligence. In addition, elective orthopaedic procedures, which are on the rise due to the ageing population, are leading to an increasing number of claims resulting from poor post-operative care or lack of informed consent.
Until recently, the law on consent has remained unchanged for a long time. However, further to the Judgment in Montgomery v Lanarkshire Health Board , patients must be made aware of any “material risks” involved in a proposed treatment, and of reasonable alternatives. This includes any risk that the patient would reasonably consider themselves to be significant.
In Thefaut v Johnston , a surgeon was found liablefor having failed to give full and accurate advice about the surgical risks of a procedure carried out to alleviate back and leg pain. In this instance, on first examination, the Claimant was advised that her condition would settle. Upon contacting the Defendant surgeon shortly afterwards complaining of ongoing pain, she was advised to undergo surgery. It was found that the Claimant had not been advised fully of the risks and benefits of the surgery, and had she been properly advised, she would have known that the chances of a full recovery from her back pain in particular were nowhere near as optimistic as portrayed to her by her treating surgeon. She therefore would not have consented to the surgery at all.
Therefore, when a patient elects to have orthopaedic surgery, it is no longer the case that a doctor just explains certain risks to the patient of a particular procedure – they must also ensure that all of the material risks and options are explained fully. As a patient, you must be provided with adequate information in order to make informed decisions about treatment.
You should be provided with:
- An explanation of an investigation, diagnosis or treatment; and
- An explanation of the probability of success or the risk of failure or harm associated with options for treatment.
However, it is worth pointing out that doctors should only be providing all of this information if it is considered that this knowledge will not cause serious harm (i.e. put off a patient or cause undue stress).
If you have consented to undergo a procedure, but would not have done so had you been given all of the options and had had the risks fully explained to you, then it may be you could claim for lack of informed consent. This is a growing area in clinical negligence claims, particularly where patients are choosing to undergo a particular orthopaedic procedure.
If you consider this situation applies to you, our specialist team of solicitors can help you recover the compensation you deserve.
For further advice on the above topics, please call us on 01483 543210 or alternatively email firstname.lastname@example.org