Australia: Was it an inexperienced doctor, unnecessary surgery or just bad luck? Which case won?

Last Updated: 29 August 2018
Article by Julie Mahony

The Facts

Patient consults GP and neurosurgeon after developing headaches

The patient was a 73-year-old man who was happy, fit and active. In early 2011, he began to experience headaches and consulted his GP for treatment.

After performing various diagnostic investigations which were found to be inconclusive, the man's GP referred him to a neurosurgeon.

The man consulted the neurosurgeon, who identified on a CT scan that the man had a brain tumour. The surgeon took the view that the tumour could be removed endoscopically, without the need to open up the patient's skull. The surgeon said that this surgery would enable him to remove the tumour through the patient's nose.

Patient agrees to endoscopic surgery to remove brain tumour

The man agreed to the surgical procedure proposed by the surgeon. While the surgeon had performed numerous brain tumour surgeries using different techniques, he had not performed surgery using this technique before.

Endoscopic surgery of this nature carried with it an inherent five to ten per cent chance of catastrophic complications.

Patient left with catastrophic complications following surgery

In March 2011, the man underwent the surgery proposed by the neurosurgeon. After the surgery, the man was left significantly impaired after what were described as catastrophic complications.

It was discovered that the man had suffered a haemorrhage in his brain. He underwent ten further surgeries to release the pressure around his brain from the bleeding and have a drain inserted into his skull.

After the surgery, the man's injuries left him wheelchair bound. He had difficulty conversing, his weight dropped from 78 to 45 kilos, he had full vision only in one eye and he had difficulty sleeping at night. Whereas before the operation he had worked daily on the renovation of his home and had an active social life, after the surgery he could no longer drive or look after his garden.

He also suffered memory loss, cognitive decline and was no longer able to attend to his own personal care activities. One year following the surgery, the man was taught how to walk again and attend to some of his personal care tasks. Despite this, he still required considerable care and support from his family.

The patient and his wife sued the surgeon in the Supreme Court of NSW for medical negligence.

case a - The case for the patient

case b - The case for the neurosurgeon

  • The neurosurgeon did not have the training or experience to perform the surgery that he undertook to remove my brain tumour.
  • The surgeon did not disclose to me that this would be his first time performing a surgery of this nature.
  • The medical experts consulted in this case all agreed that surgery was not the preferable course of action and that the tumour should simply have been monitored via scans at regular intervals.
  • The surgeon failed to disclose to me that a subsequent scan before the surgery showed that the tumour was actually smaller than it had appeared in previous measurements, adding weight to the advisability of simply monitoring it.
  • The neurosurgeon failed to disclose the risk of catastrophic complications arising as a result of the surgery. Indeed, he assured me that everything would be okay and that I would be up in a few days.
  • Conversely, the surgeon said that if I didn't have the surgery, I was at risk of suffering a stroke, ending up in a wheelchair or getting dementia.
  • I would not have had the surgery if the neurosurgeon had given me appropriate advice. He has been negligent in his care of me.
  • At a consultation with the patient, I outlined alternative courses of action – monitoring the tumour or performing surgery to remove it. The patient preferred surgery to monitoring the tumour.
  • I did not tell the patient that the operation was simple and risk-free.
  • On the contrary, I advised the patient of the risks inherent in the surgical procedure and gave him a document explaining craniotomy surgery and its risks.
  • It did not matter that I had not performed the surgery using this specific technique before, given that I had performed the same procedure numerous times in the past using a different technique.
  • I believe I was qualified to perform the surgery.
  • The complications that occurred fell into the five to ten per cent inherent risk of complication.
  • I deny negligence in performing the surgery on the patient.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the patient
Vote case B – the case for the neurosurgeon

Julie Mahony
Medical negligence
Stacks Goudkamp

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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