Every surgical procedure requires the patient's informed consent and, if that is not given, compensation is payable whether or not an operation is negligently performed. In one High Court case exactly on point, a woman who was left in constant pain following back surgery won the right to substantial damages.
The woman had undergone a private operation to remove a disc in her spine. Her lawyers claimed that she had only given her consent to the procedure after receiving excessively comforting and optimistic advice from the surgeon. She would not have given that consent had she been properly informed of the risks involved.
The operation was not a success and the woman now suffers disabling pain in her back and leg that is unlikely to diminish over time. She had been sent written advice prior to the operation concerning the benefits and risks involved. However, the vastly experienced surgeon, who performs about 600 operations a year, candidly accepted that he had not given the woman all the information that she deserved and that the advice that she did receive was substandard. In the light of developments in the law since the operation, he has adopted a different approach to advising patients.
The Court dismissed the woman's contention that the operation had been negligently performed. However, in upholding her claim, it found that the surgeon fell below the standard that the law requires in the advice he gave her. That advice had led to the woman granting her consent to the operation.
The amount of her compensation has yet to be assessed but is expected to be a substantial sum.