Question: I had to sign a medical consent form before my operation. It warned of possible risks but I still signed. Then something went wrong with my operation. Can I still claim compensation?
YES, you can. The consent form you signed does not absolve the hospital of blame for all errors. It is not a ‘get out of jail free’ card.
Did you give INFORMED consent?
‘Informed’ is the key word here.
Were you properly told of all the risks?
Were you told the risk was a “chance in a million”…when in reality the danger was much higher?
Were you told of ALL the potential risks?
Did the healthcare staff fail to mention any alternative treatments that were less risky?
Did you have enough information to make a proper informed decision? Was it detailed enough?
If not, you could claim compensation for medical negligence.
Consent: Clinicians now face a different test
The benchmark for medical negligence is the Bolam test (1957). In brief:
Would a responsible body of medical practitioners skilled in that particular field have done the same thing?
There is also the Bolitho qualification (1998) to that test:
Would the treatment you received stand up to logical analysis?
And then in March 2015 came the Montgomery test:
What would a reasonable person consider significant to enable them to make an informed choice about the treatment they are prepared to undergo?
The Montgomery test means doctors have to take much greater care when outlining the risks to you. They have to look at your individual concerns as a patient. One size does not fit all.
Here’s an example: A patient needing eye surgery may be much more risk averse than normal if they’ve already lost their sight in their other eye. They don’t want to risk complete blindness – so less risky and less invasive treatment alternatives would be much more important to them.
Doctors must take this into account under the Montgomery test.
And it’s not just from March 2015 onwards – under the law, the Montgomery test applies to cases before that date.
So you could claim for clinical negligence and lack of informed consent even if you were injured before then – provided that your case falls within the time limit.
How long can I leave it to make a claim?
There’s a three-year time limit for medical negligence and other personal injury compensation claims. Essentially that’s three years from the moment you first spotted a problem and could point to someone at fault. In some cases the time limit is even longer.
If you’re aged under 18, the three-year time limit starts at your 18th birthday – giving you more time to claim. For people lacking mental capacity (whatever their age) there’s no time limit.
Even if you don’t fit into these categories, the courts still have the discretion to allow claims beyond the three-year limit. A typical example would be when someone was told by the NHS that they had no grounds to claim – but then later discovered they did.
Consent: Other considerations
Crucially, had you been properly advised then:
- would you have acted differently?
- would you have suffered less injury?
Also, there may be other factors that have an impact.
- Are you aged under 18? (Parental consent would be needed.)
- Was it an emergency? (The doctors may not have had time to get consent.)
- What if the doctors found something else that needed treating while you were undergoing your procedure? (They couldn’t just leave it.)
But remember: you may have given your consent, you may have signed a form – but were you properly informed?
Author: David Simpson is a Partner at Coles Miller Solicitors. He is head of the Clinical Negligence Department and a Legal 500 Recommended Lawyer.
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Coles Miller Solicitors directly.
Published on 2nd November 2017
(Last updated 21st March 2018)