Investigation 03HDC18925 – Informed Consent Cover up?
In this case, we see a carbon copy example of HDC6446 where the HDC somehow, strangely fail to identify breaches of the Code. Once again, the HDC give the surgeon a free pass from being investigated further, with not even a recommendation to review practices, or an effort to forward the case to the appropriate authorities for further investigation, such as the NZ Medical Association. As a direct result, the surgeon went on to injure more patients. Details and concerns surrounding this were even discussed in parliament  and an outcome of a Medical Practitioners Disciplinary Tribunal concluded there was professional misconduct.
2. Take Home Points
- The surgeon is given a free pass under the HDC’s perceived application of the legally enforceable Code of Rights. Continuing their alleged policy of ‘learning not lynching’ for medical practitioners and protecting them rather than holding them accountable.
- Summary of breach of the Code:
Failure to disclose harm:
Doctors have a care duty to provide patients full disclosure when something goes wrong during an operation, (disclose harm or injury).
Right (1) (a) of the Code provides that patients have the right to be treated with respect. Failure to disclose inadvertent harm involves tacit deception – respect for patient autonomy supports a truthful and sensitive discussion about what went wrong and why;
Right 5(2) of the Code every patient has the right to an environment that enables both patient and doctor to communicate openly, honestly, and effectively. Open and honest communication requires candour about inadvertent harm on the part of the doctor;
Right 6(1) of the Code affirms every consumer’s right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive. When a surgical complication occurs, the patient is entitled to open, truthful, and timely information about the complication, its effect and its significance
3. What Happened
‘Surgeon performed laparoscopic cholecystectomy. Patient condition deteriorated postoperatively. Patient was returned to theatre twice over the following two days, the first time by the surgeon (to repair a perforated duodenum) and the second time by another surgeon. Patient was admitted to the Intensive Care Unit until her condition improved’
4. The HDC Outcome
‘The Commissioner found that the surgeon did not breach the Code. Perforation of the duodenum is a recognised complication of the procedure undertaken, and was not the result of any lack of reasonable care and skill on during surgery. Surgeons subsequent care of Patient was reasonable’
5. Breaches of Patient Rights Not Investigated (Unanswered Questions)
Informed consent – Risks:
It is important to look at the reasons why a patient would, having undergone laparoscopic cholecystectomy, make a complaint about being injured? If the surgeon obtained consent legally, the patient would have been fully informed of risks that included, ‘possible injury to the stomach area’. Instead, why would hospital staff recommended the patient make a complaint?
There was no evidence presented in this investigation to confirm that informed consent was provided. Nor was there evidence presented that the HDC checked client records to confirm whether or not a breach occurred.
See ruling # 7hdc6446. The exact same scenario occurred and the HDC covered up breaches of the Code resulting in consent fraud.
Disclosure of Harm:
The operating surgeon failed to disclose the true nature of issues, including the fact the patient was actually injured during surgery, thus the patient was advised by the hospital staff to make a complaint.
Which poses an extremely important question: If staff can identify possible breaches of the Code, why didn’t the HDC?
Language used by the HDC confirms a breach: “Mrs K advised me that nobody (from the surgical team) sat her down and explained to her had happened and the nature of her condition. Mrs K recalled that it was her husband who told her what had happened, and she also had discussions with the staff in the ICU Department”
Mr K advised me that at the time, a senior member of the hospital staff encouraged Mr and Mrs K to make enquiries or a complaint about what had happened.
Mrs K did not feel adequately informed about the nature and cause of her condition by the Surgeon. The Surgeon was Mrs K’s responsible clinician, and in my view he should have explained to her that her duodenum had perforated”
Injury 1 – Collapsed lung
“A chest X-ray, which showed a collapse/consolidation at the right base and left base, and significant volume loss in both lungs”
Injury 2 – Bleeding artery
“During the surgery the surgeon noticed that an artery within a muscle was bleeding and he extended the incision in order to suture the artery and thereby stop the bleeding”
More about risks bleeding: Bleeding complications account for up to one third of all major complications seen in LC, and are the second most common cause of death in patients undergoing the procedure (after anaesthesia-related complications) .
Injury 3 – Perforation Duodenum (small intestine)
Again, a breach of the Code, confirmed in the HDC’s own words. ‘The surgeon had professional obligations to both the consumer and the hospital he was operating in, to advise the consumer of the injury sustained.’