See one, do one, teach one – advising patients of your experience and training

The Supreme Court of NSW recently found a neurosurgeon liable in negligence because he lacked the relevant experience and training to perform an operation and undertook surgery in circumstances where the condition should have been monitored and an expectant approach taken in the first instance.

Following complaints of mild persistent headaches, a 73 year old patient was diagnosed with a 3.5cm tumour on his brain. On referral to a neurosurgeon, the patient underwent endoscopic surgery for removal of the tumour, which left him in a grossly impaired state.

The patient complained that the neurosurgeon did not advise him that he had never performed that type of endoscopic surgery previously, or received any training for it. The experts all agreed that it was not appropriate for the surgery to be carried out when the neurosurgeon had not been trained in it. The court found that there was a failure to properly advise the patient that the doctor lacked the experience to carry out the operation.

The alternative to an operation was a wait and see approach. The experts’ concluded that an expectant approach was the preferred course considering the patient’s age, the size of the tumour and the extent of symptoms.

The Court found that had the patient been appropriately advised of the risks of the surgery versus an expectant approach, as well as the surgeon’s lack of training and the experience, then it’s likely the patient would not have undergone the surgery. That was because of risk of undergoing the surgery in the hands of a surgeon who have never performed or observed the procedure were much more serious than the risks of an expectant approach.

This decision provides a reminder for practitioners that when advising their patients as to treatment, this requires them to provide information on other available treatment options, the risks associated with each the available options and whether they lack the requisite training and experience in relation to a recommended treatment option. A failure to do so will expose the practitioner to liability where the patient can satisfy the Court that they would not have undergone the treatment, which caused the damage.

Reference: Jambrovic v Day [2017] NSWSC 1468

Posted by Karen Kumar

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