The recent Australian Capital Territory Supreme Court decision of Ljubic v Armellin  ACT SC 21 found that a doctor removed a patient's ovaries during a hysterectomy without the patient's consent and this amounted to trespass.
The plaintiff, Mrs Ljubic, was born in Croatia. She migrated to Australia at the age of 19. At the time of the operation Mrs Ljubic was 44 years of age.
In June 2003 she attended her general practitioner complaining of menstrual issues. Investigations revealed a bulky uterus. The general practitioner referred her to Dr Armellin, a consultant obstetrician and gynaecologist. Mrs Ljubic attended Dr Armellin's consulting rooms on 20 November 2003. There was a conflict about what happened and what was said during that consultation. Mrs Ljubic stated that she submitted and consented to a total abdominal hysterectomy. However, in the course of the operation Dr Armellin, without her consent, removed her ovaries causing immediate onset of menopause.
Dr Armellin stated that he remembered Mrs Ljubic. After reviewing an ultrasound, Dr Armellin informed Mrs Ljubic she had at least four fibroids in her uterus. Dr Armellin relied on his notes and his usual practice which was to ask about her symptoms and then discuss the options. Of the various options, Dr Armellin recommended hysterectomy. During the consultation Dr Armellin drew a diagram of the uterus showing the fibroids. He also gave her a leaflet on hysterectomy published by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Of note there was a passage stating:
'If the ovaries are removed during a hysterectomy in a pre-menopausal woman, the level of female hormones in the blood would decrease quickly and this will cause symptoms of the change of life.'
Dr Armellin asked Mrs Ljubic what she would like to do. She replied she would like to have a hysterectomy. Dr Armellin then said a discussion took place regarding whether or not the ovaries should be removed. He said he told her she was a young woman and probably did not need to have her ovaries removed. However some patients wanted their ovaries removed as they were worried about cancer. He discussed with Mrs Ljubic the need to undergo hormone replacement therapy if the ovaries were removed. By the end of this discussion, he formed the opinion that Mrs Ljubic did not want her ovaries removed. Dr Armellin then had Mrs Ljubic sign a consent form for a total abdominal hysterectomy.
Dr Armellin's evidence was that after the completion of the consent form Mrs Ljubic had a further discussion about the removal of the ovaries. She said she was concerned about cancer. He said he then discussed the risks. Dr Armellin's evidence was that he said to Mrs Ljubic 'You'll have a hysterectomy, what do you want to do about the ovaries?' and she replied 'Take it all out'.
Dr Armellin dictated a letter to Mrs Ljubic's general practitioner after the consultation and of note he said 'We did discuss the question of the ovaries and she tells me she wishes to have them removed' and 'I have given her literature regarding the hysterectomy'.
Mrs Ljubic gave her evidence in English, although she did have an interpreter present in case she had difficulties.
Mrs Ljubic stated Dr Armellin informed her that as she had fibroids the only practical option was to remove the uterus. Mrs Ljubic's evidence was that she said to Dr Armellin that he was not going to touch her ovaries and he replied in the affirmative. Mrs Ljubic said arrangements were then made for the operation, Dr Armellin showed her a diagram and she was then asked to sign a consent form.
She said that she asked a question about her ovaries and Dr Armellin said she was still young and that her ovaries were healthy. She denied that there was any discussion about removal of the ovaries negating the risk of ovarian cancer in the future. She categorically denied saying to Dr Armellin 'take the whole lot out'.
Dr Armellin's evidence was that he saw Mrs Ljubic in the anaesthetic room shortly before the operation. He then specifically asked her if she was still happy to have her ovaries removed. The reason he asked the question was that he looked at the operating list and noticed the operation identified was total abdominal hysterectomy with no mention of the ovaries. Mrs Ljubic replied in the affirmative to Dr Armellin's question.
Mrs Ljubic had no recollection of this conversation.
After the operation, Dr Armellin wrote to Mrs Ljubic's general practitioner and noted 'both ovaries appeared normal and at her request I removed them'. Following Mrs Ljubic's discharge she saw her general practitioner. Her general practitioner informed her Dr Armellin had removed her ovaries. Mrs Ljubic was shocked to hear this. She then went to see Dr Armellin. She said he apologised a number of times for the misunderstanding.
The Court held that Dr Armellin did not have the consent of Mrs Ljubic to remove her ovaries. This amounted to a breach of the duty of care and trespass of Mrs Ljubic. Judgment was entered for Mrs Ljubic for $170,200.
The Court was influenced by two matters in arriving at its decision. The first was Mrs Ljubic's shocked reaction on finding out her ovaries had been removed. The Court accepted unreservedly that this was the first Mrs Ljubic knew about it, that she had not intended to agree to it, and that it came as a genuine shock to her. The second was Dr Armellin's response to Mrs Ljubic's reaction. The Court was satisfied Dr Armellin was similarly surprised and shocked to discover there was an issue about consent.
In addition, the Court said there was no contemporaneous record to assist in resolving the issue as to what was said at the initial consultation except the hospital consent and admission forms which recorded the proposed surgery as 'total abdominal hysterectomy' with no mention of ovary removal.
This case largely turns on its own facts, but some general principles can be distilled as follows:
- All discussions with the patient should be documented to enable the practitioner to defend the treatment decisions.
- The operative procedure identified on the consent form should match the procedure undertaken.
- The practitioner should take care to effectively communicate and ensure the patient understands the proposed treatment.
© DLA Phillips Fox
DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.