Member comments: Patient awarded over $215k: failure to advise risks of non-surgical treatment

27 November 2018 | Avant media

Our recent article published in the member newsletters about failing to advise of treatment options, generated several comments from members.

While some of our members commented that it is “a very interesting case and good article” and “a good illustrative case”, other correspondents were concerned about the conclusions drawn about the management of a ruptured Achilles tendon:

“Both operative and non-operative management of Achilles tendon injuries are reasonable options, but only operative intervention carries with it the risk of infection/wound breakdown and in the worst possible situation, below knee amputation. There has been significant research published in the last 10 years about the virtues of non-operative management of Achilles tendon injuries, in particular functional rehabilitation.”

This case was not about whether non-surgical treatment was inherently inappropriate: according to the reported decision, the three medical experts all agreed that in general, non-surgical treatment was an appropriate response to a ruptured Achilles tendon.

The court noted there was evidence that the incidence of particular complications differed between the surgical and non-surgical treatments, with, for instance, increased infections but reduced re-rupture and tendon lengthening among patients treated surgically rather than non-surgically.

All three experts agreed that the risk of tendon lengthening was greater in non-surgical treatment (said to be less than 1% for surgical treatment and about 5% for non-surgical treatment), and there was medical evidence that the patient was less likely to have had ongoing disabilities if a surgical reconstruction had been performed.

The patient gave evidence that if he had been told about the option of surgical treatment and its advantages and disadvantages compared with non-surgical treatment, he would have chosen to have surgery.

The case referred to some of the relevant medical literature including one paper that stated:

“Absolute polarisation toward either operative or non-operative treatment is not clinically sound. Appropriate informed consent needs to be undertaken. This must take into account the patient’s level of activity and wishes coupled with an understanding of their comorbidities and the effects that they will have upon complication rates.”

Consequently, the issue in the case was the patient was not given any information about surgical repair as an option, and therefore was not given the choice about whether to have surgical or non-surgical treatment.

The case reaffirms the ethical and legal principle that a doctor needs to give patients sufficient information to make an informed decision/choice about their treatment. When the recommendation is to undertake a procedure, then the information that the patient needs to be given should include a discussion of the alternatives and the relative risks and benefits.

One of our members raised the issue that a hospital may only treat Achilles tendon injuries conservatively and another hospital may treat all of these injuries surgically, while another asked, why would you treat with surgery if you don’t believe in it? Surgery is not appropriate in all circumstances and conservative management may be a reasonable approach. You have no obligation to offer a treatment that you do not believe is clinically indicated or in the patient’s best interests.

The point of the discussion in our article was to highlight that you should not take a one-size fits all approach to management options. Where there is a range of acceptable options or alternatives, and you have a preference for one, then the patient should be given that information and the reasons why you prefer one approach over the other. Each patient is different, and their particular circumstances may mean that they would be willing to face the risks of a conservative approach versus a surgical approach and vice versa. The only way to assess this is to have a conversation with the patient about what is important to them and what outcomes they are prepared to live with.

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