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Mr Robert Wheeler

The first glimpse of a duty to warn?

We are all familiar with the necessity to disclose information to patients when we seek their consent for treatment. But when we do so, whilst we identify (amongst other matters) the potential risks and complications of the proposed intervention, there has, until now been no expectation that we should set out to the patient the signs and symptoms of these potential complications, which would allow the patient to realise that the complication has transpired. But a new court decision1 provides explicit guidance to clinicians that this is what we should do.

The patient in question was a 49 year old property service manager who underwent an inguinal hernia repair under general anaesthesia, as a day case.

His BMI was ‘just less’ than 30; he was otherwise healthy. His surgery was initially laparoscopic, but converted to open after bleeding during the extra-peritoneal dissection. The operation time was 53 minutes, and pneumatic boots were applied intraoperatively.

The court found that the patient was told to report any problems postoperatively but was not given any information, oral or written, with respect to the risks or signs and symptoms of venous thromboembolism (VTE). 

Following surgery, the patient suffered calf pain and stiffness which he attributed to lack of use; dyspnoea, which he attributed to lack of fitness…and finally unequivocal signs of embolism, leading to his diagnosis and treatment.

The claimant’s expert witness criticised the trust for its failure to undertake a formal assessment of the risk of VTE.  But he accepted that the patient did not fall into the category of those patients who should be prescribed chemical thromboprophylaxis; since his particular risk of developing deep venous thrombosis was low. The expert nonetheless went on to note that:

‘….all patients undergoing surgery are at some risk and that risk must be addressed by the provision of appropriate advice.’…‘Therefore, there was a basic duty of care to advise Mr Spencer of the symptoms of DVT should it arise in the postoperative period.’…‘As such, the failure by the hospital to advise Mr Spencer of the signs and symptoms of deep vein thrombosis would not be supported by a responsible body of surgical opinion.’2

The court found that the relevant NICE3 guidelines were not wholly clear in identifying the group of patients to which the specific guidance on VTE should be given on discharge. It adopted the claimant’s expert witness’ view, that the NICE guidance (on the provision of information concerning VTE) is intended to be directed at all patients who fall within the groups covered by the guidelines (which would have included the claimant); other than those whose procedure carried no risk, however remote, of deep vein thrombosis or pulmonary embolus.

The court concluded that since pneumatic boots were used to reduce the risk of venous thromboembolism for all surgical patients under general anaesthetic in the defendant hospital, the use of the boots in the claimant’s case was a tacit admission that he fell into the group of patients at risk of this complication. Further, that VTE advice should be given to every patient;

‘….I consider that modern, safe and responsible medical practice should be to give such advice to patients undergoing general anaesthetic. Whilst in many cases such treatment will cause a small risk of deep vein thrombosis and pulmonary embolism, and one of which many patients will be unaware; to inform such patients of the very particular signs and symptoms of those conditions is a precaution that can save lives and should be given.’4

Furthermore, the court noted that to expect patients to report ‘any problem’ was insufficient advice. The claimant’s problem of calf pain was too distant from the operative site to expect a reasonable patient to conclude that it could be related to his surgery, and to recognise this sign as a problem in the context of the postoperative instruction.

It seems likely that the duty to warn patients so that they can present themselves early with VTE has arrived. Perhaps we should not be surprised. If an elementary explanation, written or oral, of the signs and symptoms can prevent a patient suffering pulmonary embolus, or dying of one, why would we not provide it?

A PDF of the court report is available to read: Spencer v Hillingdon 2015 EWHC 1058 QB

  1. David Spencer v Hillingdon Hospital NHST [2015] EWHC 1058 (QB)
  2. David Spencer v Hillingdon Hospital NHST [2015] EWHC 1058 (QB) Para 38
  3. National Institute for Clinical Excellence. Clinical Guidelines 46 (2007) & 92 (2010)
  4. David Spencer v Hillingdon Hospital NHST [2015] EWHC 1058 (QB), Collender HHJ, Para 78

Robert Wheeler
Department of clinical law