09HDC01565 - Health and Disability Commissioner

Opinion 09HDC01565
32. Mr A rang Dr D, who recalls that Mr A spoke to him about the surgical risks that had
been explained to him, including things like paralysis. Dr D states they did not discuss
the specific procedure or risks as he was not familiar with these in detail, but that he
advised Mr A to speak directly with the consultant surgeon, to ―go over the procedure
and risks involved and any concerns he had about the surgery before consenting or
proceeding with the surgery‖. He recalls that Mr A was happy with this course of
action.
Second surgical consent discussion
33. Dr E was informed of Mr A‘s concerns, and went to speak with Mr A in between
operations he was performing that afternoon. Dr F was present, as was registrar Dr G.
Dr E recalls:
―I explained that his condition was not life-threatening and in fact, now that he had
a ―desk job‖, he was relatively asymptomatic. I suggested that we have a period of
expectant observation and that I would review him again in outpatients after
several months. 13 After getting up to return to theatre, [Mr A] suddenly stopped
me and said he changed his mind, was very keen to return to [work] and wanted to
go ahead with the procedure. I reiterated that I could not make him any better than
he was clinically at that time (asymptomatic) and that the only benefit would be
his likely return to physical exercise and [work]. He still wanted to proceed. I was
happy with the risks explained by [Dr F] including CSF [cerebrospinal fluid] leak
(which I believe together with a surgical pseudo-meningocoel are the most
common complications of posterior fossa surgery including Chiari
decompressions). I did not in so many words tell him that he could die from the
surgery, but used my ‗plane flight analogy‘ which I use with all my cranial and
most spinal cases (this can be verified by any person that regularly attends my
consent taking process with patients). The basics were that if you fly from
Christchurch to Sydney, you expect that you […] arrive safely the majority of
times. However, there is a small chance that for whatever reason, the plane crashes
into the Tasman and that obviously is very serious. Therefore if you do not want to
crash, you should not fly in the first place. Otherwise trust the plane, the pilot and
copilot and take the flight. [Mr A] accepted this and he himself signed a legal
document stating the risks, including stroke, neurological deficit, deep vein
thrombosis and pulmonary embolus, acute myocardial injury, etc all of which on
their own could be a cause of death.‖ 14
34. Dr E notes that the fact that Mr A hesitated to give consent the first time supports his
view that the consent process was done appropriately. He states: ―I do not believe in
‗scare tactics‘ when taking consent from a patient as undergoing neurosurgery is
worrying enough to a patient. However I think that my consent ‗technique‘
abovementioned suffices in the process of explained risk.‖
35. Dr F also recalls the discussion that he and Dr E had with Mr A in relation to the
operation, its risks, and potential complications. He notes that Mr A had the
13 Expectant observation is the management of a condition by surveillance, or ―watchful waiting‖.
14 Emphasis in this paragraph (bold) is Dr E‘s.
7 5 September 2012
Names have been removed (except Canterbury DHB and the experts who advised on this case) to
protect privacy. Identifying letters are assigned in alphabetical order and bear no relationship to the
person’s actual name.