When Does a Complication in Surgery Become a Question of Medical Negligence?
This case deals with unintended consequences of a surgical procedure. A complication can be defined as a foreseeable, unintended outcome of a procedure about which a patient should be warned in advance as part of the process of informed consent. Bleeding and infections would be examples of such outcomes which may not be preventable, in spite of a reasonable standard of care.
A case in negligence arises if the outcome was unanticipated and resulted from a standard of care which fell below that which would be reasonably expected in the circumstances.
This case involves a divorced pilot who had a new partner and wanted a vasectomy. They did not wish to have any further children and he was fully counselled by the Consultant in Outpatients prior to his admission. He signed a consent form which indicated that one of the recognised complications of the procedure was bleeding.
He was admitted as a day case and underwent a bilateral vasectomy. The operating note indicates that nothing untoward occurred during the procedure and there was no excessive bleeding.
He was discharged that evening and through the night started to develop increasing swelling and pain in the left scrotum. The next day he returned to the Accident and Emergency Department of the hospital where significant bruising was noted. That day he was taken to the operating theatre, the left side of his scrotum was opened and a large haematoma (blood clot) was removed and the area drained. There was no evidence of infection.
He made an uneventful recovery but continued to complain of pain in his scrotum on the left side which prevented him from having intimate relationships with his partner and they split up after another three months.
Post operative pain is not uncommon after a vasectomy with an incidence of up to 10%, about which a patient should be warned in advance. Bleeding is an unintended complication which unfortunately can occur, but is not an indication of substandard surgical practice. He was managed appropriately. He commenced an action in negligence against the surgeon involved which was easily defended and subsequently dismissed because the case was not substandard and there was no evidence of a breach of duty.
The learning from this case is that it is important for legal advisers to understand when there are unintended outcomes after medical intervention, it is essential to demonstrate there has been a breach in the duty of care, without which a case in negligence is unlikely to succeed.
