A recently reported case we have
highlighted in which a patient sued a local health district for battery
following a hernia repair, has stirred rigorous debate amongst surgeons about its
implications for the profession.
The patient commenced legal
proceedings alleging battery because she did not consent to a surgical
registrar performing the incisional hernia repair, instead of the specialist
Alternatively, if the patient was
unsuccessful in her claim for damages for battery, she claimed negligence in
performing the procedure due to the failure to insert a negative pressure
surgical drain to reduce the risk of post-surgical infection during the hernia
repair. The patient’s case was that had a specialist general surgeon
performed the surgery, they would have taken this precaution.
The patient also claimed reasonable
care required the treating doctors diagnose post-operatively the presence of
an infection and either remove the mesh, or treat her with intravenous
antibiotics for a prolonged period.
Complications develop following hernia repair
The patient underwent a hernia repair at the
hands of the surgical registrar under the supervision of the specialist general
surgeon. Six days later, the patient re-presented with
“oozing and bleeding” from the wound with abdominal pain. Two days after that, the
surgeon undertook a washout, exploration of the abdominal wound. During surgery
there was a large cavity above the mesh with the wound opening
infra-umbilically. The seroma was drained and a VAC dressing applied. IV
antibiotics were administered.
The wound swab that had been
taken indicated mixed anaerobes, which the surgeon regarded as “normal skin
flora, not infection”. No swab was taken from the mesh or otherwise deep in the
abdomen, during surgery.
fortnight later, the patient was readmitted to the hospital for the delayed
closure of her abdominal wound. The surgeon assessed the wound cavity
overlaying the mesh to be “clean with no evidence of infection”. The surgeon
performed a procedure to close the wound.
days later, the patient re-presented to the hospital again. She was initially seen
the senior registrar who recorded “wound complication”. He received a
history of an increase in swelling and pain around the wound, and bleeding with
associated nausea and fever. On examination he found erythema around the wound
and a “serious/bloody/purulent discharge”. Among his impressions were wound dehiscence
with “? – collection/infection”. He
recorded that he was “alert to possibility of infected mesh”.
was reviewed by the surgeon the following day. The surgeon’s evidence was that
the patient’s white cell count was normal. He ordered antibiotics and
redressing of the wound. The patient continued to be treated with intravenous
antibiotics. On review the next day, the wound continued to ooze mildly. At
discharge, the nursing sister recorded “no ooze, nil signs of infection, some
skin irritation on sides”.
days later, the patient presented to another hospital with a severe infection
associated with the surgical mesh. She
required urgent surgical intervention.
Battery allegation fails
held that in relation to the allegation of battery, the patient was aware the
surgery may be performed by another doctor. The patient gave evidence that she
had read the consent form “fairly closely” before signing it. However, she
disavowed the content of the acknowledgment that the procedure may be performed
by another doctor. The consent form stated that she had been told “… the
procedure/treatment may be performed by another doctor”. The court was
satisfied that she was aware of the consent form’s contents and understood them
when she signed it.
was also satisfied that the surgeon followed his usual practice of informing the
patient that in the public hospital system registrars are required to perform
operations on public patients. Therefore, the consultant surgeon will not
always personally perform the procedure and a registrar may perform the
also found that it could not be said that the senior registrar performed the
procedure instead of the surgeon. Although the senior registrar was the
designated surgeon, both doctors were scrubbed in during the procedure. The
surgeon took an active part during the procedure, including directing the
senior registrar closely and also actively participating in the procedure
the claim of battery failed.
Patient’s negligence claim proven
In respect to this claim, expert opinion was divided on whether a surgical drain was required. One expert gave evidence that the use of a drain was mandatory and another a departure from competent professional practice if not used. A further expert thought it was prudent and almost obligatory to drain.
Two other experts gave evidence that the use of a drain did not represent a departure from competent professional practice as it was a matter for the surgeon’s discretion.
The court found that the standard of care required the use of a drain for the primary procedure. This also led to the finding that the failure to insert a surgical drain led to the development of an infection.
When discussing surgical procedures with patients, doctors
should ensure that:
- A consent form has been signed and understood prior to
commencing the procedure.
- If the
procedure may be performed by someone other than yourself, patients
are informed during the consent process that the procedure may be
performed by another doctor.
- If you are supervising a
doctor in training ensure you direct them closely and/or actively
participate in the procedure itself, as appropriate.
Our Medico-legal risk and
your practice: Checklist for surgeons will
help you identify and manage areas of risks in your practice.
If you are subject to a complaint, visit our website or call our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.