Risk of adhesions and medicolegal issues UK ~ So how much should we tell patients?

Excerpt taken from http://onlinelibrary.wiley.com/doi/10.1576/toag.6.2.1.26993/pdf.
The Obstetrician & Gynaecologist
2004;6(2)
SUPPLEMENT
11
There are a number of quality and risk management
issues surrounding adhesions in surgery.The
surgical speciality has given rise to the highest
number and second highest value of negligence
claims reported to the UK National Health
Service Litigations Authority (NHSLA). The
highest numbers of reported Clinical Negligence
Scheme for Trusts (CNST) claims by speciality
are:
• surgery: 3365
• obstetrics and gynaecology 2237
• medicine 1278
• accident and emergency 803.23
Increasingly, complications resulting from
postoperative intra-abdominal adhesions have
been the subject of medical negligence cases.
These have included failure to diagnose adhesion related
problems, delay in diagnosis, bowel damage
at adhesiolysis, adhesive intestinal obstruction,
infertility or risk of infertility and failure to take
precautions to prevent adhesions. 24 Between
1994–1999, for example, the UK Medical
Defence Union received 77 adhesion-related
claims that resulted in 14 out of court settlements
in 11 years ranging from £7,960 to £124,261
(average £50,765 per case).24 The Medical
Defence Union is one of several insurers for the
private sector; figures are not available for claims
made by the National Health Service.
Anecdotal evidence suggests that the number of
claims and out of court settlements has increased
largely since then.
Duty of care
There is a duty of care to provide careful advice
and sufficient information upon which women
can reach a rational, informed decision on whether
to accept or refuse treatment. In negligence cases
people usually claim that insufficient information
was provided and that, if it had been provided,
consent would not have been granted.
So how is negligence established?
In order for this to be successful it is necessary to:
1) establish a duty of care
2) show a breach of this duty
3) demonstrate that this breach caused the injury.
All three aspects need to be present for negligence
to be established. Recently, in addition to this, the
UK Health Act has also established a duty of
quality.
The Bolam test of negligence (1957) had for
many years set the precedent in determining
negligence. This ruling stated that practitioners
are not negligent if they act in accordance with
practice accepted by a responsible body of
medical opinion. However, recent judgements
suggest that judges are moving away from
accepting what reasonable doctors might do,
towards supporting what reasonable patients
might expect. Recent case law suggests that the
Bolam test is being modified to enable a court to
reject medical opinion if it is not ‘reasonable or
responsible’.25 Physicians are required to understand
their obligations and have a duty to warn a
patient of any material risk inherent in a
proposed procedure, however small.
So how much should we tell patients? It is not
necessary to canvass every risk. However, it is
important to take account of the personality of
the patient, the likelihood of misfortune and what
in the way of warning is needed for the particular
patient’s welfare. Are gynaecologists and surgeons
informing patients about the risk of adhesions?
According to the International Adhesions Society
Patient Survey, the answer is no. Results from this
survey showed that adhesions were mentioned as
part of the consent process in only 10.4% of
cases.26 In 14.4% of cases, adhesions were discussed
but not as part of the consent process. For patients
undergoing adhesiolysis procedures, 54% were
given some information before surgery and 46%
were given specific information about antiadhesion
agents. In nonadhesiolysis procedures
only 10% of patients were advised about adhesions
and only 6% were given information on antiadhesion
agents.
Negligence cases relating to adhesions are
becoming more common. It is important to be
aware that the law governing negligence has
changed. Doctors are obliged to understand their
obligations and this will mean warning of the
risk of adhesions prior to abdominal or pelvic
surgery.