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Hospital sued for battery for failed hernia repair

19 April 2018 | Paul Tsaousidis, BA LLB, Head of Practice – Legal, Avant Law, NSW

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 general surgeon.

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.

Almost a 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.

About six days later, the patient re-presented to the hospital again. She was initially seen by 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”.

The patient 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”.

Around ten 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

The court 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.

The court 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 procedure.

The court 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 itself.

Ultimately, 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.

Key lessons

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.

More information

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.

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