The case of Janet Birch v University College London Hospital NHS Foundation Trust [2008] (the Trust) held that the defendant Trust was negligent because it did not properly obtain patient consent for a procedure as it failed to discuss the comparative risks of an alternative, lower risk procedure with the claimant.

Janet Birch was a patient at the Trust’s neurology centre and claimed against the Trust for injuries that she sustained as a result of alleged clinical negligence during an invasive diagnostic procedure.

Background

Mrs Birch was admitted to hospital with suspected vascular third nerve palsy as a result of her diabetes. She was aged 55 years and had suffered from Type 1 diabetes for 20 years. Her symptoms included a persistent headache, nausea and vomiting and right periorbital swelling and ptosis. However, because she was suffering atypical symptoms her consultant neurologist recommended an urgent MRI scan to exclude a post communicating artery aneurysm and cavernous sinus pathology. The scan could not be done in the same hospital and she was transferred to a specialist neurology centre. The following day a cerebral catheter angiogram was performed which successfully excluded an aneurysm.  However, the patient suffered a stroke later that day which left her with a left sided weakness and unable to perform many of her usual daily activities. It was agreed that the stroke was caused by the angiography.

The patient claimed that the Trust’s decision to perform the angiogram instead of an MRI scan was negligent and secondly, that the Trust failed to disclose the comparative risks of angiography against an MRI scan.

The Court’s decision

The Trust’s decision to perform the angiogram was not negligent.  The doctors had undertaken the relevant risk analysis in assessing the serious consequences of missing an aneurysm which needed to be ruled out with certainty. The angiogram was the most appropriate investigation.

The issue of consent was then considered. The patient had been warned about the potential risks of the angiogram including that of a stroke but was not given information on the comparative risks of an MRI scan being undertaken instead.  The Trust’s evidence was that it was not appropriate to discuss the alternative, lower risk option of an MRI scan since it was not under consideration.

The issue was whether the patient should have been informed about the comparative risks of the MRI scan. The angiogram had a 1% risk of a stroke occurring but the MRI had no risk at all.  It was held that unless a patient is informed of the comparative risks of alternative procedures they will not be in a position to give fully informed consent.  However, the court was not able to define when in general terms the duty to inform of comparative risks would arise, but that it did arise in the "special circumstances" of this case and in the absence of previous legal authority on this issue.

The "special circumstances" of the case are not clear but may relate to certain factual elements that arose such as the expert opinion that the patient’s history made the angiogram higher risk. There was no record in the patient notes as to why the angiogram was done in preference to the MRI. The patient was transferred to have an MRI scan and knew that this was a treatment option. The patient’s consultant gave evidence that someone should have discussed the different imaging methods and risks with the claimant. 

The judge found that if the patient had been given a dispassionate account about the advantages and disadvantages of both procedures she would have chosen an MRI scan and declined the procedure that led to her stroke. Mrs Birch was awarded £621,000.

Comment

The court refers to the "special circumstances" of the case but does not specify what these are.  It is therefore difficult to say on a general basis when the duty to inform about comparative risks will arise. It may be that this case is therefore confined to its particular facts but there may well be an increase in litigation as the court may be asked to decide on the specific facts in each case whether the duty exists.

The General Medial Council’s guidance on consent recommends that patients should be given the benefits, risk and side effects of each option and a doctor can recommend a particular option which they believe is best for the patient.  It would appear extra care should now be taken to ensure all options available are discussed with the patient before obtaining their consent.

To summarise, where there is an alternative lower risk procedure available and this factor may affect the judgement of the patient, then that procedure should be discussed with the patient to ensure they are in a position to give fully informed consent.

Eve Piffaretti can be contacted by telephone on 029 2038 5917 or by email.