Informed consent and the significance of Montgomery

A 40 year old woman has received a six-figure pay out from the Royal Blackburn Hospital following a failed hernia repair.

The woman, Miss EL, received £400,000 for her injuries, life time care and other losses following the operation which took place in 2013.

The settlement has been achieved following numerous admissions made by the Trust in their Defence, once the matter was taken to Court. It was admitted that it was a breach of duty to fail to provide a risk benefit analysis of the different treatment options.

It was further admitted that if Miss EL had been properly counselled prior to the index operation, then she would have elected for open repair of the incisional hernia. It was also admitted that open repair has a lower risk of small bowel injury as opposed to laparoscopic repair.

It was further admitted that if Miss EL had undergone open repair then she would have avoided the small bowel injury and multiple complications inter alia: stoma formation followed by a period on intensive care, the need for Total Parenteral Nutrition, hepatic dysfunction, renal complications due to the high output fistula, short gut syndrome and recurrent urinary tract infections, prolonged hospitalisation with its associated pain and suffering, psychological distress and separation from her young family, major and PTSD.

She is left with unsightly and prominent scarring in the abdominal wall, in the neck, and in the chest area.

The case represents a successful legal challenge using the Montgomery ruling at its best.

In the case of Montgomery v Lanarkshire Health Board [2015] Nadine Montgomery was a woman with diabetes whose son was born with serious disabilities after shoulder dystocia during delivery.

The doctor did not tell Ms Montgomery of the risk of shoulder dystocia, despite her increased risk as a diabetic. The doctor said that she did not routinely discuss the risk of shoulder dystocia with women with diabetes for fear that, if told, such women would opt for a caesarean section.

In their judgment on the Montgomery case, the Supreme Court justices ruled that a doctor is “(…) under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatment … the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risk of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision.  This role will only be performed if the information provided is comprehensible.”

Kate Lozynska, solicitor from the medical negligence team at Fletchers who represented Miss EL, said: “It is very unusual to have a full admission from the Defendant at such an early stage. In ‘consent cases’, a lot of weight is put on the Claimant’s factual evidence.

On this occasion, the Defendant has admitted that had my client been properly consented prior to the operation and informed of the relative risks and benefits of laparoscopy as opposed to laparotomy, she would have elected the latter approach. Regrettably, she is facing long term consequences but I hope that the damages will provide her with the best possible quality of life in the future.”