Operating beyond your scope of practice

Case history¹

A 73-year-old man with headaches was seen by a neurosurgeon, Dr D, on 2 March 2011. A CT scan showed a meningioma at the base of the skull, which Dr D considered was unlikely to be malignant. However, he advised surgical removal because of the risk of stroke or dementia. It was decided at that consultation that Mr J would undergo endoscopic surgery to remove the tumour through the nasal passage.

Dr D gave Mr J a document explaining craniotomy surgery and its risks, but the document did not describe the endoscopic procedure which Dr D was recommending.

On 31 March 2011, Mr J underwent endoscopic surgery to remove the tumour. This was the first time that Dr D had performed this particular surgery, although he had performed other transnasal endoscopic procedures and had removed brain tumours by craniotomy. The hospital had to acquire the specialised endoscopic equipment required for the surgery.

There were no complications during the operation, but later that day Mr J suffered a cerebral haemorrhage. He underwent several further procedures, including the placement of an external ventricular drain, and was finally discharged home in December 2011. He was left considerably impaired.

Mr J brought a claim against Dr D. It was not alleged that the surgery was negligent, and it was accepted that he had suffered a recognised complication. However, it was alleged that Dr D had not obtained proper consent and that he did not have the appropriate training and experience to carry out the surgery.

Dr D denied any negligence and the case proceeded to trial.

The trial

The liability experts agreed that surgery was not the preferable course of action on 2 March, because at that time there was not an appreciable risk of Mr J suffering either dementia or a stroke if his tumour was not surgically removed.

The experts said that it would have been preferable to monitor Mr J’s condition, and that surgery should only have been an option if his condition deteriorated, as the result of tumour growth or increase in the oedema in his brain. They considered it was unreasonable for Dr D to have presented the alternative, conservative approach as a poor option.

The experts also agreed that Dr D ‘probably’ did not have the training and experience to perform the surgery endoscopically. They said that Dr D should have disclosed to Mr J that this was his first time performing such surgery, and that he should also have advised Mr J that it carried a 5-10% risk of the catastrophic complications which he did in fact suffer.

Under cross-examination Dr D made several concessions which supported Mr J’s case. He agreed that there was then no real prospect of Mr J’s tumour causing dementia or stroke within six months and conceded that, at the time, he had a preference for the surgical option. Dr D maintained that he had the appropriate skills to carry out the surgery, although he had not undergone the available advanced fellowship training nor observed this procedure himself.

The outcome

The court found that Dr D should have advised Mr J that a conservative approach should have been the first treatment strategy, before deciding to pursue surgery. In summing up, the judge said it was ‘quite implausible’ that Mr J would have agreed to have surgery in March 2011 if he had been advised about the serious risks of the surgery when compared with the risks of conservative management, and if he had been informed that it was a procedure that Dr D had never done before.

Mr J’s claim against the surgeon was successful.

Discussion

• The court concluded that Mr J had not given informed consent in this case. This is a reminder to clinicians to ensure that all relevant treatment alternatives are explored in the consenting process, and not to allow their own preference for a particular course of treatment to influence the patient’s choice.
• The court noted that the decision to have the surgery was made during a one-hour consultation, ‘without any time being taken to consider which of the available alternative options should be pursued, or another opinion being obtained.’ Ensuring that patients have sufficient time in which to make their decision is an important element of obtaining valid consent.
• This case is also a reminder to doctors to always act within the limits of their competence and their scope of practice. The court was clear that, given his lack of experience and training in the procedure he recommended, Dr D should have disclosed this to Mr J and ‘should not himself have undertaken that surgery’.

Marika Davies
Medico-legal Adviser, MDA National

Reference

1. Jambrovic v Day [2017] NSWSC 1468