Consenting to the scalpel

Roger Pearson

A RECENT out-of-court settlement, rumoured to be five figures, has prompted renewed calls from pressure groups for the law regarding medical treatment to be tightened up.

Frances Henton went into hospital for the removal of an ovarian cyst and came to after the operation to find she had undergone an abdominal hysterectomy to which she had not consented.

The Campaign Against Hysterectomy and Unnecessary Operations on Women and the Hysterectomy Legal Fighting Fund have condemned the current situation. They are also seeking new laws obliging doctors to be more forthcoming with the information they give to women such as 50-year-old Henton before they go into the operating theatre.

Henton's case followed another out-of-court settlement two months ago in which teacher Jackie Bartley received £32,500 after the High Court accepted she had not consented to the removal of her womb and ovaries. A number of similar cases are in the pipeline.

Medical negligence specialist Alison McClure, a partner in Hampshire-based firm Blake Lapthorne, was the key legal figure in Henton's case.

McClure heads a team of eight lawyers in the firm's personal and medical injuries department. While she accepts there are times when surgeons will discover situations which require treatment not originally anticipated after starting an operation, she believes it is imperative that patients' consent is obtained as far as possible to cover all possibilities.

McClure, who was admitted in 1986, and who as a result of specialist medical negligence work is a panel lawyer with the charity Accidents for Victims of Medical Accidents (AVMA), was called in for Henton's case after Henton contacted the charity.

Henton's operation was carried out privately and that, said McClure, meant that special considerations came in when gathering evidence.

In medical negligence cases involving NHS treatment, records are invariably kept together. However, in private treatment this is not the case.

"In private sector treatment you tend to find some records are kept by the hospital, some by the specialist concerned, some by the anaesthetist, rather than them being kept centrally," she said.

"It is vital that those handling cases involving the private medical sector are aware of this and realise they might need to go to more than one source for the records."

Another problem facing McClure was assessing the value of the claim. The main problem was the lack of similar cases to use as a starting point.

McClure said she was greatly assisted by counsel Dennis Matthews, a medical negligence specialist whose expertise she had called upon before. She said the recent settlement in the Bartley case played a key role in the defendants' decision to settle the action at the eleventh hour.

However, she is critical of strategies which settle cases at the doors of the court; Henton's case settled 21 days before it was due to be heard at Salisbury County Court.

"I feel that in many cases settlement could be achieved far earlier than it is yet it is still frequently the practice of defence solicitors only to settle at the very last minute," she said.

She also warns of the need for sympathy to clients.

"Obviously you have to be sympathetic and acknowledge their feelings about the case and that it is emotional for them," she said. "At the same time it is vital you do not allow their emotional response to what has happened cloud your view as to how successful their case will be in legal terms."