Written by Ciaran Harper, Senior Litigation Executive in the Medical Negligence Department at Fletchers Solicitors
A recent inquest concluded that Stephen Pettitt of Newcastle died after an operation in which the surgeon had robotic assistance. The operation, which took place in 2015 was the first of its kind in the UK. In her narrative verdict, the Coroner, Karen Dilks, said that Mr Pettitt’s death was a “direct consequence of the operation and its complications”, that the operating surgeon had been “running before he could walk” given his lack of training on the robotic device, and that conventional open heart surgery would only have had a 1-2% chance of dying, meaning that Mr Pettitt would likely still have been alive.
While no formal negligence claim has been brought at this time, it was said during the inquest that there was no formal benchmarking in place to indicate competent use of the robotic aid, and the operating surgeon did concede that he could have done “more dry run training” before the surgery took place.
Medicine is obviously a constantly-developing field, and there have been controversies before about the extent to which doctors should be held liable when they use ground-breaking treatment, but it seems that there would be a strong argument in this case. For a claim to be successful, Mr Pettitt’s representatives would need to show that the hospital trust breached its duty of care to Mr Pettitt, and in so doing, caused his death. It might do this in a number of ways:
- Failing to develop a benchmark standard guideline for competence;
- Failing to ensure that the operating surgeon had reached that standard;
- Failing to ensure that Mr Pettitt had been apprised of the risks of innovative surgery and had consented to them.
They would then need to show that, on a balance of probabilities (which means “more likely than not” or “at least 51% likely), that if these failures had not happened, Mr Pettitt would not have died. In my view, given the Coroner’s findings, this second, causative element would be relatively straightforward to show.
As a patient, you have a right to be informed about the risks to you of any procedure which your doctor suggests, and ultimately, it is your treatment and you have a right to direct it as you see fit – the days of doctors paternally (and patronisingly) telling you what to do are past. Medicine in the 21st Century should be a thoroughly consultative process.
The development of new technology is a wonderful thing, and holds the promise of making the world happier and healthier for all of us. Sadly, in this case, the problem appeared to be (as it so frequently is) the human side of the equation, as the surgeon seemed to overestimate his ability.