You choose: the case of the absent surgeon

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The judgement against Royal Devon & Exeter Foundation Trust in the case of Kathleen Jones appears to have created a precedent that gives patients the right to choose who performs their surgery. KJ needed a spinal operation, and a certain surgeon, Mr C, was recommended to her by the GP. She was referred and assessed, and the decision to operate was made. Hearing that Mr C was on extended leave for several weeks, KJ opted to put off the operation until he was back. A new date for surgery was fixed. KJ attended the hospital and in the hours leading up to the operation said,

“I haven’t seen Mr C yet this morning, I assume he is the doing the operation?”

“Oh no, he is outpatients today, does it make any difference?” replied the nurse.

“Yes it does! I have waited all this time to have my operation undertaken by Mr C.”

She was unhappy, but signed the consent form. The operation did not go well, the lining of the spinal canal was torn, more senior help was called into the operating room, and KJ was left with chronic disability. KJ sued. The judge concluded, having heard expert opinion and after referring to precedent, that although the operation was not performed negligently the patient would in all likelihood not have been injured if Mr C had done the operation. Her right of autonomy had been breached. The informed consent that she had given was undermined – ‘…I consider that her decision to allow the operation to go ahead was not freely taken…’ He awarded £190,000.

The judgement dwells on conversations, correspondence and snippets from GP and hospital notes – in an effort to determine if KJ was told who would operate, or warned that it might not be Mr C – but its conclusion raises important questions about what patients can expect when they submit themselves to the care of the NHS.

As a patient, it is understandable that you would be anxious to know who was going to do your operation and how much experience they had. A solid local or national reputation would be a comfort as you approached the date, and you would go into hospital with a greater sense of confidence. You might check their statistics on-line, or read testimonials. It is only natural to focus one’s hope, the antidote to fear and uncertainty, on an individual. To be told at the last minute that the person you thought was going to do the operation was in clinic, and was unavailable, would immediately undermine that confidence. Not only that, it would make you feel part of the machine, just another case, a unit allocated according to whichever personnel were around that week. But of course by the time you were starved, dressed in a gown, marked with black ink and transferred to a trolley, any sense of power over the situation would have been removed. Looking at the picture that I have just painted, I can see the judge’s point. I can see the patient’s point!

Is there a valid counterargument?

KJ’s operation was elective, so there was a great deal of time for it to be considered and arranged. A lot of time for the patient to hear and read about the surgery and the relative merits of various surgeons. In the elective arena there is opportunity for choice, and space for the exercise of autonomy. We only have to look across to the arena of emergency care to see that choice is limited to particular types of medical care.

A patient with acute chest pain might be aware that there is a particularly good cardiologist in the region, famed for his ability to open arteries in the blink of an eye and save people from severe infarction. The other five cardiologists attached to the hospital are good, but not quite as good. The patient will have no idea whether he is on duty or not. There is a one-in-six rota, so it will be, literally, a ‘roll of the dice’. There is nothing wrong with this situation. All the cardiologists are trained (just as both spinal surgeons in the legal case were trained). So we must accept that in the acute situation autonomy over who one sees or who one is operated on by does not truly exist. Nevertheless, if we have faith in the quality of the hospital, or the NHS in general, we do not mind. We submit ourselves to the health service in our hour of dire need, when the risks are arguably greater than in the elective arena.

If such a lack of autonomy is broadly acceptable in an emergency, why was it not acceptable in the case of KJ? Why was the Trust found guilty?

Comparing emergency and elective patients may not be valid. The judge in this case was clearly swayed by the evidence that KJ had changed her operation date in order to guarantee that Mr C did the surgery. Her consent was founded on the assumption that Mr C would be there. In the judge’s eyes her expectations trumped the internal arrangements made by the Trust which resulted in Mr C being in clinic that day. The principles of patient-centred care clash with the complex necessities of a busy department. The luxury of choice, perhaps never more than a veneer, is stripped away. This is a bleak depiction, and not one with which I would like to characterise the whole NHS, but there is truth in the picture. Patient choice is limited. The big choices – who treats us, where they treat us, when they treat us – are rarely available (unless we pay to go privately). If patients remain under the illusion that choice extends this far, future disappointments, and legal challenges, are bound to occur.

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