Family awarded clinical negligence compensation in informed consent case

Forbes Solicitors look into the issue of informed consent in the light of some recent clinical negligence cases that have come before the courts.

It was reported in the Times on the 21st September that the family of a man who died after a surgeon performed an unnecessary procedure without explaining the risks before getting consent” has won compensation.

The relatives of Dennis Setchell, 77, were advised by his surgeon that he had a 2 per cent chance of dying during the surgery to remove part of his liver. It transpired that was his chance of survival. He was operated on in March 2008 but the procedure was aborted when he had a cardiac arrest.

They tried again in September, but had to have another operation the next day as a result of excessive bleeding. He was put into a coma from which he never recover. He died in October when his family decided to turn off his life support.

Following the suspension of the surgeon, an internal investigation found that the patient had not been properly informed of the risks and the decision to operate was inappropriate even though he would have consented to it. The Hospital accepted the care was not at the standard he could have rightly expected and the family were awarded compensation.


Consent is a difficult area. A recent case of MONTGOMERY (Appellant) v LANARKSHIRE HEALTH BOARD considered the issue where Mrs Montgomery became pregnant. She was a diabetic and was therefore likely to have a large baby. There was a 9-10% risk of shoulder dystocia, but the hospital did not inform her of the risk because the risk was very small. During the delivery, shoulder dystocia occurred and the baby was deprived of oxygen due to occlusion of the umbilical cord. He was born with severe disabilities.

Mrs Montgomery’s case was that she should have been advised about the risk and the alternative of delivery by caesarean section. The court took the view that it was incumbent on the NHS to advise of the substantial risk of shoulder dystocia if a vaginal delivery were attempted, and to discuss with her the alternative of a caesarean section. Had she been advised of the risk she would probably have opted for the caesarean and the baby would then have been born unharmed.

Each case will turn on its particular facts but this case shows it’s important to be give all the relevant facts before a procedure.

If you are looking for any more information with regards to our services view our Clinical Negligence section. You can also contact solicitor John Bennett in our Clinical Negligence department via email or phone on 01254 770512. Alternatively send any question through to Forbes Solicitors via our online Contact Form.


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