A UK court of appeal dismissed a claim for damages which arose as a result of a surgeon’s failure to warn a patient of the risks associated with undergoing a procedure to repair an abdominal hernia on the basis that the claimant would, nevertheless, have chosen to undergo the procedure.

The claimant was successful in establishing that the surgeon did not inform her of the risks of undergoing a repair to her hernia using a surgical mesh and, more specifically, that a repair to her hernia using the surgical mesh procedure could affect her future pregnancies. The claimant was single at the time but later began a relationship with a partner she wanted to have children with.

The judge held that even if the claimant was provided with the information relating to the alternative procedure, being a suture repair to her hernia, she would have, in any event, elected to undergo surgery for repair to her hernia using the surgical mesh procedure. The reason for this was that it was highly likely that suture repair to her hernia would fail and that the hernia would recur. The judge was of the view that the claimant, despite stating during evidence, that she would have chosen the suture repair option, was a rational person.

The court had to determine whether the surgeon’s failure to obtain informed consent from the claimant and the resulting breach of duty, gave rise to the damages claimed.

The surgeon admitted that he did not discuss with the claimant what the potential implications of a mesh repair were. Both parties’ experts were in agreement that the claimant should have been counselled about the potentially adverse effects of a surgical mesh during pregnancy. The surgeon claimed that the claimant did not indicate that there was a prospect of her falling pregnant following the procedure being performed, in which case he would have informed her of the risks associated with a mesh repair to her hernia.

The appeal court agreed with the following findings of the trial court:

• The claimant would have been informed that the suture repair would almost certainly fail within 2 years of the procedure being performed, and that the surgical mesh repair procedure stood a very high chance of success;
• She would have been informed that almost any surgeon, including the surgeon who performed the procedure on her, would have advised her that she should undergo the surgical mesh procedure as it was the better option;
• She would not have been informed that she could not have children in the future. However, she would have been informed that there were certain risks involved should she elect to undergo the surgical mesh procedure. The court stated that there was an important distinction between the two;
• She was single at the time when the procedure was performed and she did not contemplate falling pregnant at any stage, other than 2 years prior to that when she was in a relationship.

The claimant alleged that she suffered shock, distress and depression which were all “intimately connected” to the surgeon’s failure to obtain her properly informed consent.

The court of appeal stated that while the “but for” test is still applicable, it is also necessary for the claimant to show that the surgeon’s breach of duty was the cause of the injury suffered. The claimant was not successful in establishing that but for the breach, she would not have undergone the procedure to repair her hernia with a surgical mesh. The claimant furthermore did not present any evidence to the effect that she would have decided to postpone the procedure had she been informed of the risks involved.

“The judgment is Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust.”

Written by Natasha Naidoo, Associate, Norton Rose Fulbright SA