Patients are entitled to choose their surgeon.

Abstract

A recent judgement in a UK county court has reiterated that patients' autonomy includes the right to make a choice about their surgeon (http://www.outertemple.com/userfiles/Documents/Jonesjudgement.pdf [2015]). Mrs Jones had spinal stenosis and was on Mr C's waiting list for bilateral decompression. When she enquired about expediting her surgery, she was offered the choice of an alternative surgeon. She decided to wait because she preferred the operation to be performed by Mr C himself. Unfortunately, there were surgical complications and she was left with significant neurological injury. Mr C had not, as she expected, performed her operation; rather it was Mr S, a Fellow in Orthopaedics. Although he had met Mrs Jones the week before surgery when she signed the consent form, and again on the day of surgery, Mrs Jones alleged that she had not been told that Mr S would be performing the procedure until she was already in her surgical gown. The Claimant asserted her injuries were due to negligence but the judge dismissed this allegation. Neurological injury is an inherent risk of spinal decompression surgery, and unfortunately that risk materialised during her procedure. The Claimant still succeeded in winning her case. The judge accepted Mrs Jones' evidence that her choice of surgeon was important to her, and she had not been properly informed that Mr S was going to be operating. The judge found that had she known in advance that Mr C would not be performing her operation then she would not have agreed to surgery on that day. Although she ultimately agreed to Mr S performing the operation, the judge was sympathetic to her explanation that by that late stage she felt beyond the point of no return. Her consent was not freely given and this was a breach of duty of care. To succeed in an action of negligence, the Claimant must also prove causation. Although the judge found no evidence of surgical negligence he did establish causation. Given Mr C's seniority and considerable experience, the judge concluded that the risk of a surgical complication would have been lower in the case of an operation carried out by Mr C. He concluded his judgement by considering a similar case of Chester v Afshar in which Lord Hope stated: ‘the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so which and by whom, to be operated on' (Chester v Afshar [2004] UKHZ 41). The judge concluded that the provision of a remedy was essential to ensure respect is given to the autonomy of patients. This case provides further evidence that the standard consent form, stating that no guarantee can be given that a particular person will perform the procedure, protects from liability against trespass but not negligence. A consent form is no substitute for documented dialogue, which must include all factors that may be of material relevance to the patient. This case also illustrates that care must be taken if plans are altered without timely discussions with the patient. None declared. Completed disclosure of interests form available to view online as supporting information. Please note: The publisher is not responsible for the content or functionality of any supporting information supplied by the authors. Any queries (other than missing content) should be directed to the corresponding author for the article.