By Kate Williams – Medical Law Consultant
In the last ten years a number of medical negligence cases have been brought that allege the medical treatment recommended by a doctor was unnecessary. Unnecessary as the patient’s medical condition did not :
- Warrant the recommended treatment ;
- Require surgery as a misdiagnosis was made of the presenting symptoms and
- Require a medical procedure and upsellling of an elective procedure was represented to the patient as necessary.
The NSW courts when considering these cases have said that if medical treatment has been represented as necessary when it has no therapeutic benefit to a patient, then the patients consent to such treatment may not have been validly obtained by the health professional.
The principles of what constitutes consent to medical treatment was outlined by the Court noting the following broad principles:
- Consent is validly given where a patient has been given basic information as to the nature of the procedure. When the nature of this procedure has been misrepresented consent will not be validly given.
- When the procedure of the nature carried out was not capable of addressing the medical condition and therefore cannot be valid consent.
- Assuming the proposed treatment is capable of providing a therapeutic effect, it is necessary to distinguish between core elements to define the nature of the procedure and peripheral elements such as risks involved.
The motive of the particular practitioner in seeking consent to proposed treatment may establish that what was proposed was not intended to be treatment at all so that the nature of the act to which consent was ostensibly given was not the act carried out. i.e. consent was given to treatment, but what was provided was not in fact treatment. In these circumstances there will be no valid consent.
I have been involved in a number of successful medical claims that have alleged that unnecessary treatment was provided in the following scenarios :
- Unnecessary wisdom teeth removal which resulted in facial nerve injury.
- Unnecessary insertion of vaginal mesh to remedy bowel and bladder prolapse that did not exist
- Unnecessary treatment of minor orthopaedic injuries that only required conservative management.
- Unnecessary removal of inguinal hernias when lower abdominal pain was really referred pain from a hip
- Unnecessary removal of suspected cancerous lesions before punch biopsy , which were benign resulting in extensive facial scarring.
- Unnecessary treatment to insert dental implants when patient had a history of significant facial sinus surgery and it was completely contraindicated to place dental implants into such a patient.
- Unnecessary bunion surgery causing significant foot and ankle deformity