Duty to Warn Patients of Surgical Track Record

Case history

In 2009 Mr Lu, a Cardiac Surgeon, was identified as the source of infection which caused a cluster of Prosthetic Valve Endocarditis (PVE). A strain of antibiotic-resistant bacteria had embedded itself in Mr Lu’s skin and transferred to 11 patients undergoing heart valve surgery. Five of the patients died and it was said to be the worst reported outbreak of PVE. The transfer was thought to have occurred via micro perforations in Mr Lu’s surgical gloves. It was accepted that Mr Lu’s infection control techniques were “robust” and the transfer did not occur through any breach of duty.

Mr Lu immediately ceased performing heart valve surgery and subsequently ceased all surgery. During this period of self-enforced “suspension” he underwent microbiological testing. In 2010, it was confirmed that he had been eradicated of the bacteria.

Medico-legal issues

In 2012 the Trust Board, as part of its investigations, sought expert opinion from three microbiologists who agreed that the risk to patients of Mr Lu returning to cardiac surgery, including heart valve surgery, was minimal, provided he adhered to practical measures recommended by them, e.g. further microbiological testing and “double gloving” during procedures. As he no longer carried the bacteria, he did not pose a greater risk than any other Cardiac Surgeon.

At the time this case was heard, Mr Lu had still not returned to surgical practice due to a number of issues regarding the Trust’s proposed re‑training program for him. One particular issue was patient consent.

Issue of patient consent

It is well established that a doctor owes a duty of care to warn a patient of the risks of a procedure which a reasonable person would consider to be material. This duty extends to risks a particular patient would attach significance to.²

However, in addition to Mr Lu informing his patients that PVE was a material risk of heart valve surgery, the Trust Board sought a condition that Mr Lu would need to advise his patients about his previous involvement in the PVE outbreak. This condition extended to the patients of the Surgeons under whom Mr Lu was re‑training as part of his re-entry program.

Mr Lu claimed that such requirements were unjustified and not required by law, given that he did not pose any greater risk of infection than his colleagues. The Trust argued that there was a moral duty for them to provide the information.

Outcome

The court held that:

• there was no requirement for any Surgeon under whom Mr Lu was re-training to provide additional information over and above that which the clinician considered adequate to obtain informed consent
• Mr Lu was not required, on his return to independent practice, to tell his patients of his involvement in the PVE outbreak.

However, the court made it very clear that this ruling was not intended to influence the exercise of clinical judgement, and that it was a matter for the individual Surgeons whom Mr Lu was assisting to decide what information should be provided to their patients to obtain informed consent.

Had Mr Lu continued to carry the bacteria and/or there was a negligent cause contributing to the PVE, there is no doubt the court would have decided differently. However, the case does seem to indicate that if the risk of undergoing the procedure at the hand of a particular Surgeon remained higher than the Surgeon’s colleagues, the Surgeon may have an obligation to inform the patient of that risk.

Amy Rogerson, Associate
and Kerrie Chambers, Partner
HWL Ebsworth Lawyers

References
1. Mr John Lu v Nottingham University Trust Hospitals NHS Trust [2014] EWHC 690 QB.
2. Rogers v Whitaker [1992] 175 CLR 479 AT 490.