Webb v Norfolk and Norwich University Hospital NHS Trust 21.10.11

In a claim successfully defended by Kennedys, allegations of an improper consent procedure and negligent breast reconstruction surgery are dismissed; an option to salvage would have failed in any event.  

Comment

This case highlights the importance of a detailed pre-operative discussion with the patient, together with the need for clear record keeping. The Judge accepted that for surgery such as breast reconstruction, it is necessary for the surgeon to see the patient before being able to proceed with surgery, and this must have occurred.

The case also acts as a useful reminder of the importance of explaining why a patient’s cooperation is required during the consent process. As well as ensuring the optimal surgical result, it will also help eliminate any potential embarrassment to the patient.

Background

The Claimant, having previously had cosmetic breast augmentations and implants, was treated for breast cancer in 2003 and 2006. On the second occasion she underwent a right breast mastectomy, during which an implant was removed. Reconstruction surgery took place in July 2007, inserting an implant into the right breast and replacing the left breast implant with one of a different shape in order to achieve greater symmetry. Following additional surgery in March 2008 to further increase the size of the right breast implant, the implant became exposed and was removed.

A key issue in the case surrounded the pre-operative discussion in July 2007. The Claimant alleged the July 2007 reconstruction surgery was negligent in not reducing the left breast size as planned and that in the absence of negligence, further surgery would have been avoided. She also alleged that she should have been offered the option of salvaging the implant and reconstruction after the wound broke down in March 2008, thereby avoiding further surgery.

Held

Whilst expressing considerable sympathy for the Claimant, His Honour Judge Hampton (sitting as a High Court Judge) dismissed the claim for the following reasons:

  • Credibility of the Claimant’s evidence

Recognising her previous life traumas (including relationship breakdowns, death of a partner, imprisonment of a boyfriend, financial problems and family illness) he accepted the Claimant had become angry and embittered by her experiences, which had affected her recollection of events, and the accuracy of such recollection.

  • Pre-operative discussion

He found that a pre-operative discussion had taken place and that the surgery had been performed to a reasonable standard. Experts for both parties had already accepted this. She accepted the surgeon’s clear evidence that "he could not possibly have operated on the Claimant without seeing her first. Indeed, he would not and could not operate on any patient without seeing them first". In relation to breast surgery, there is a need to mark the patient before she becomes unconscious. Cooperation by the patient is required to be seated to ensure that the optimum cosmetic result is achieved.

In addition, the Defendant Trust clearly demonstrated that the surgeon knew it was the Claimant’s wish to be made smaller on the left side, not only because he knew what was in the clinical notes, but because he had discussed this with the Claimant first. The operation notes demonstrate that he wished to achieve a smaller result on the left-hand side, that he tried smaller implants, and went on to use one of the implants selected by his supervising consultant to achieve a smaller appearance.

  • Salvage operation

He accepted that that the Claimant did feel that she was pressured into giving her consent to the removal of the implant. It was "highly unlikely that any doctor would deliberately bully a patient in this situation". However, he held there was a failure to discuss the option of retention or the option of salvaging the implant. Advice to the effect that removal was the only treatment option was a breach of duty. He concluded that, had the Claimant been given the option of retention, she would have accepted it – her medical history demonstrated she was prepared to take such risks.

  • Would a salvage operation have been successful?

Notwithstanding the above finding, he held that on the balance of probabilities, the option of salvage would in any event have failed. The Claimant did not heal well and there was total dehiscence and failure of the wound for no obvious reason. He accepted the Trust’s expert evidence that the chances of successful salvage at that time were very small. Accordingly, further procedures could not have been avoided and indeed, the situation might have been much worse.