Patient awarded $43k for unnecessary procedure

29 April 2019 | Avant media

A recently reported court case involving a general practitioner reinforces the importance for doctors to recognise the limit of their expertise and informed consent.

The GP was found negligent for breaching her duty of care by performing an unnecessary skin re-excision procedure, causing harm to the patient.

The case centred on the GP’s failure to recognise the limit of her expertise and knowledge and to adequately explain the treatment options, benefits and risks so the patient could make an informed decision.

The case

The patient presented to the doctor expressing concern about the appearance of two moles. The doctor believed they were benign and indicated they did not need to be removed. However, the patient was concerned about their appearance so the doctor removed them at her request. One of the moles was on her ankle, and excision required two stitches. The biopsy revealed a blue naevus with no evidence of malignancy or dysplasia.

Six weeks later, the patient came to the surgery complaining a growth had developed at the site where the mole was removed. The growth was about 7 x 5 mm in size, double that of the original mole, and dark in colour. Initially unconcerned, the doctor told her she should wait and watch the area as the pathology had come back clear.

That night, the doctor conducted her own online research and became concerned it may be difficult to differentiate a blue naevus from a melanoma. She found there was a small risk of the growth turning cancerous, but she did not contact a specialist for advice. The GP mentioned the option of seeing a dermatologist to the patient, but expressed a preference for an excision biopsy and asked the patient to come in to have the growth re-excised.

The patient agreed to have the growth removed, signing a form which included a brief description of the procedure and advice about alternative treatments, the associated risks and possible complications.

The doctor performed the re-excision using a horizontal incision and tension sutures. Two days later, the patient attended the surgery in extreme pain with a visible infection halfway up her calf. She was advised to go straight to hospital where she remained for three days while being treated for cellulitis.

The patient was off work using three weeks of personal leave, required pain medication for a month, had restricted mobility and was left with moderate scarring on her ankle.

Expert evidence

The case centred on the GP’s failure to recognise the limit of her expertise and to warn the patient of the risks of the procedure to enable her to make an informed decision.

Expert evidence from two GPs found the possibility the growth had turned into a malignant lesion was infinitesimally small. The experts also agreed that when removing a skin lesion, the patient should have been advised of two key risks: infection and scarring.

A specialist dermatologist and a specialist plastic and reconstructive surgeon gave evidence that by definition, a blue naevus is a benign lesion, extremely common and easy to diagnose, both clinically and histopathologically. Treatment involves providing reassurance to the patient. If the patient still wants it removed, they should be informed the potential for scarring is much greater in certain areas, including the ankle, and it may be in the patient’s best interest not to have it removed.

The experts agreed that as the initial histopathology was clear of malignancy, a “small punch biopsy, rather than a full excision would have been either the preferred approach or at least a fair choice if further investigation was warranted.”

In terms of management, the specialist dermatologist said that if a GP is uncertain about the diagnosis of a skin lesion, they should obtain a biopsy or call a dermatologist to discuss the case.

Failure to warn of risks

While the patient conceded she did read the consent form, she claimed no other risks were discussed and she was reliant upon the doctor’s advice, which was a preference for having the growth re-excised.

“On its face [the form] contained no further description of the procedure, advice about alternative treatments or advice about associated risks or possible complications,” the court noted. “I place little weight on the fact that [the patient] signed the form. That of itself does not corroborate the claim that advice about risks was provided.”

The court found the doctor briefly mentioned the risks of re-excision, including the possibility of infection and reduced mobility. However, she failed to seriously discuss the option of a referral or that the growth may simply be a scar or a part of the healing process, or wait to see if the growth changed.

“It is clear that at the time of the re-excision, a reasonably competent general practitioner would have understood that the patient had a condition that the practitioner was not familiar with and that they should either wait for the clinical symptoms to become clearer or seek additional expertise,” the court said.

Doctor’s failure to recognise limit of her expertise

“While re-excising the growth was an option immediately available to the general practitioner, doing so without a clear understanding that it was necessary or appropriate would not be consistent with the principle of doing no harm,” the court said.

The court noted the context of the patient’s original request to remove the mole due to concerns about her appearance. The GP ought to have known the patient was likely to attach significance to the appearance of the site. Therefore, the brief mention of the possibility of infection and scarring was insufficient as these risks would be expected to impact whether the patient chose to undergo the procedure.

The decision

The court found the doctor did not exercise reasonable care and skill when providing professional advice and treatment to the patient. She was found negligent for not recognising the limit of her expertise and knowledge about the likelihood of the growth being malignant or pre-cancerous and failing to inform the patient of the treatment options and their benefits and risks, to enable her to make an informed decision about how to proceed.

The patient was awarded $42,565 in damages and the GP was ordered to pay the patient’s costs.

Key lessons

This case highlights the importance of recognising the limits of your expertise and any gaps in your knowledge and if necessary, seeking the assistance of other specialists.

  1. If you don’t possess sufficient expertise to provide the patient with advice or to perform a procedure, inform the patient and refer the patient to a relevant specialist.
  2. If you don’t feel comfortable fulfilling a patient’s request, you may decline their request and refer the patient to a relevant specialist.
  3. Inform the patient of all the treatment options available including the benefits, risks, alternatives and complications of these treatments to enable them to make an informed decision. Explore with the patient what outcomes are important to them.
  4. Keep accurate, contemporaneous medical records of the discussion and document patient consent and any written information you have handed out.

More information

Listen to our new podcast on current issues with patient consent, in which Georgie Haysom, Avant’s Head of Research Education and Advocacy, chats with Dr Ian Incoll, The Dean of Education at the Australian Orthopaedic Association.

Download our factsheet: Consent essentials or view our video: Gaining patient consent.

If you are unclear about your ethical, professional or legal obligations, visit our website or email our Medico-legal Advisory Service (MLAS) at: nca@avant.org.au or call 1800 128 268 for expert advice, 24/7 in emergencies.

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