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30

Mar

Duty of the Doctor to have a ‘Dialogue’ with the Patient

Posted by : Michael Shiers

A recent change in the law relating to medical negligence claims was examined in a High Court decision earlier this month.

medical negligenceMrs Thefaut had a bad back with sciatica.  She ended up seeing a Consultant Neurosurgeon, Francis Johnston, who carried out surgery on her.  Mrs Thefaut complained that Mr Johnston had not explained the options and the risks of the surgery sufficiently to her.  She said that if he had, she wouldn’t have undergone the surgery which was not a huge success.  The Trial Judge, Mr Justice Green, summarised the relevant test as follows:

An adult of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure to that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments. 

The test of materiality is whether in the circumstances of the particular case a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to be attach significance to it.

The test therefore is a mixture of subjective feelings of the patient and objective feelings and wishes of the reasonable patient – the test is sometimes stated to be:

“in the circumstances of the particular case would a reasonable person in the patient’s position be likely to attach significance to the risk.”

The doctor needs to look at fairly obvious factors such as the severity of the symptoms but other personal factors individual to the patient may be less self-evident, such as the patient’s tolerance for, or stoicism towards, pain or their ability to manage pain. There may be other factors such as their requirement to return to work and other personal factors which make them more fragile.

In order for the doctor to obtain this information, there needs to be adequate “time and space” to have a “dialogue” with the patient.

The duty of the doctor is to ensure that the patient understands the seriousness of her condition and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives.  The idea is that the patient should then be able to make an informed decision and the doctor must therefore provide the information in a form which is comprehensible to the particular patient. By way of example, handing the patient a list full of medical jargon and getting her to sign it would not discharge the duty.

The Court went on to stress that the doctor does not have to describe every risk – a risk may be so low that it is not material and so the doctor cannot be criticised for not telling the patient about it.

The Judge felt that Mr Johnston had been overly optimistic and had not taken enough time to explain properly the risks and options available to Mrs Thefaut.  He felt that if Mr Johnston had explained fully, Mrs Thefaut would not have opted for surgery or at any rate would have gone for a second opinion.  Mrs Thefaut’s claim was therefore successful.

If you feel that you have suffered additional pain and injury due to a doctor not explaining things fully to you then please do get in touch for a free initial no obligation discussion.

Mike Shiers is a specialist Personal Injury Solicitor and Partner (Non-LLP Member) at Nash & Co in Plymouth