Within a week, the patient who hadn’t consented to the drain being inserted, was dead.
Now, around six years later, Aged Care Commissioner Carolyn Cooper has found the man’s rights were breached by the doctor’s post-operative care and recommended he apologise to the man’s family, who complained to the Health and Disability Commissioner (HDC) about the care provided by Health New Zealand - Te Whatu Ora.
In a report released today, Cooper said the man, who was in his 70s but not named, died from an injury sustained during a chest drain procedure following heart surgery in 2018.
She said there was no documentation of informed consent before the procedure in his clinical records and, on balance, it was more likely than not that the doctor, referred to as Dr C, failed to warn the man of the procedure’s risks, including damage to another organ, a major bleed, or death.
Aged Care Commissioner Carolyn Cooper investigated the care provided to the man by Health New Zealand - Te Whatu Ora. Photo / Supplied
The report stated that the man underwent a mitral valve repair and coronary artery bypass grafting under the care of a cardiothoracic surgeon.
After the surgery, he was transferred to the intensive care unit in a “stable and satisfactory position”. He was thought to be recovering well and was being considered for discharge.
However, a chest X-ray a couple of days later found an abnormal accumulation of fluid around his lungs.
Dr C, a junior cardiothoracic registrar, attempted to put in a chest drain without ultrasound guidance to drain the fluid but was unsuccessful and the procedure was abandoned.
The man was sent back to his room for observations but there was no handover care to the evening team.
Later that day, he collapsed and a subsequent scan revealed an injury to his spleen. The man’s condition continued to deteriorate, and he died three days later.
At the time of the incident, Dr C had performed the chest drain procedure about 15 times and more than half of those had been performed unsupervised, with no complications.
Dr C told the HDC that the man had received information regarding the heart surgery and, as part of this, he also received information regarding a chest drain and the possibility that it might need to be inserted.
He said he had discussed finding the fluid on the man’s lungs with him and his daughter before proceeding.
According to Dr C, they talked about the expected risks, side effects, and test results and that there were no alternative options for the man other than leaving the fluid. He said the man agreed to the procedure.
Health New Zealand said that at the time it was not usual practice to gain written consent for this type of procedure on the ward.
However, Cooper found Dr C breached the Code of Health and Disability Services Consumers’ Rights relating to the rights to be fully informed, to make an informed choice and give informed consent, and to services of an appropriate standard.
“I do not accept that Dr C can rely on what was allegedly discussed and provided prior to [the man’s] earlier operation ... (by another doctor) as a basis for informed consent for the subsequent procedure.”
Cooper was also not satisfied, despite the doctor’s contention, that he had explained the specific risks of the chest drain procedure to the man.
“The only evidence that supports that a discussion of risks occurred is the reference in the [Adverse Event Review] that the registrars recalled explaining that the procedure did ‘carry risk’. I do not consider this persuasive evidence that [the man] was provided with a clear explanation and assessment of the particular risks of the procedure.”
She said the man’s daughter recalled Dr C had not outlined the risks and there was no documentation of a discussion about risks.
Cooper also made adverse comments about the doctor for not arranging a follow-up X-ray after the unsuccessful procedure, and about Health New Zealand having no written policy about when the use of ultrasound guidance should be considered; when to arrange a post-procedure X-ray; and that multiple staff failed to recognise the need for a post-procedure X-ray for the man.
She recommended the doctor apologise to the man’s family and complete HDC’s online learning module on informed consent and reflect on deficiencies identified in his care.
Cooper also made a series of recommendations to Health New Zealand, including to provide her with progress on its recommendations from its adverse events review, and the results of an audit to monitor compliance of written consent.
She further recommended it develop a policy for chest drain procedures within eight months of her report.
The report stated Health New Zealand had since made a range of changes, including a requirement to obtain written informed consent for inserting a chest drain.
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff covering crime and justice, arts and entertainment, and Māori issues.
