Law on surgery consent urged

A High Court judge has suggested a law change to make doctors keep written and signed records of the risks patients face in operations.

Surgeons have cautiously welcomed the idea, which stems from a woman's failed lawsuit against a doctor over the issue of informed consent.

This week, Justice David Baragwanath dismissed a case against the Nelson Marlborough District Health Board and one of its doctors, who were sued by the woman, who became pregnant after a tubal ligation operation.

In the High Court at Blenheim in November, the woman - whose name is suppressed - sued Wairau Hospital doctor Owen Jennings and the health board, claiming she was not warned in 1999 that there was a chance the operation could fail.

Within a year the woman, known as Patient A, became pregnant and gave birth to a girl with Down's syndrome. She sought to recover the costs of raising her daughter, claiming that she was not fully informed before the operation.

Dr Jennings, an experienced obstetrician and gynaecologist, said that because of his experience with medical systems overseas, he was always "meticulous and pedantic" in giving patients the information they needed, and that he warned Patient A of the risk of failure.

Justice Baragwanath said the evidence did not establish that the health board and Dr Jennings failed to inform her of the risk of failure.

However, he said the honesty of Patient A's belief that she was not told of the risk could also not be disputed.

"Equally possible is that information to that effect [being told of the risk] was treated by Ms A's mind as within acceptable limits and that it therefore discarded the topic as something requiring further attention, which is why she did not later remember it."

Justice Baragwanath said there was no evidence that it was negligent for a doctor to fail to obtain written consent on a form setting out the risks in plain language. But it would be a simple and obvious precaution for the consent form to refer explicitly to the risks, he said.

John Simpson, executive director of surgical affairs for the Royal Australasian College of Surgeons, supported the idea in principle but said the college would have to consider the details of any law change.

Patients signed a consent form to have an operation and to say they had been given the information they needed, he said. The form did not necessarily spell out the surgery risks.

More than 10 years ago, Mr Simpson had introduced his own form, which detailed risks, because he believed hospital forms were "woefully inadequate".

"I think we would, as a college, support anything that ensures good communication with the patient."

Justice Baragwanath suggested that in future the law might impose on doctors an obligation to maintain a written and signed record.

"Here the presence of such a document would have brought clearly to Ms A's mind the nature of the risk. She would have been in no doubt as to her position and might have been spared the distress both of the pregnancy and of this litigation.

"Equally, [Dr Jennings] might have been spared the experience of this claim."

Nelson Marlborough District Health Board chief medical adviser Andre Nel said the board regularly reviewed its informed consent policy and was satisfied with its current policy and procedures on informing patients about risks.

- NZPA, STAFF REPORTER