THE DOCTOR’S DUTY TO INFORM

 

A recent Decision of the UK High Court is particularly interesting in that it helps to clarify the obligations of a Doctor to inform a Patient of the extent of his illness.

In the case of Gallardo v Imperial College Healthcare NHS Trust the claimant, a Spanish man aged 46, had a gastric ulcer and, following various courses of treatment, underwent a gastrectomy. A malignant gastrointestinal stromal tumour (GIST) was also removed.

He suffered serious complications leading to further surgery, and more investigations – finally being discharged and seen as an outpatient on a number of occasions over the following year. However, he understood the surgery to have been for a gastric ulcer and he was not told that the tumour was malignant. No arrangements were made for his follow-up.

The following year, the claimant went to hospital twice while in Spain and was diagnosed with a rare form of abdominal cancer. On receiving his medical records from his UK hospital on request, he discovered reference to the diagnosis of the GIST (which had by now recurred) – the first time he became aware of the diagnosis. He then had further surgery in Spain and, in 2016, he developed metastatic disease.

He brought a negligence claim, arguing that the hospital had failed to inform him of the GIST diagnosis and had not referred him for follow up appointments or monitored him. He claimed that if he had been monitored, the recurrence of the GIST would have been diagnosed meaning earlier treatment and a better prognosis.

The test set out by the Court was: what would a reasonable patient like this patient expect to be told? The test is essentially a patient centred one.

The Court found, on the facts, that the claimant had not been informed of the diagnosis.  At issue was who should have told the Claimant about the diagnosis, and did the duty to tell him pass from the NHS to his private doctors? And when should he have been told?

The Court stated that it is the patient’s right to be told, and stated: “It ought not to be postponed for longer than necessary without good reason. Otherwise the doctor risks losing the patient’s trust and confidence, and the patient’s right to be informed is not respected”.

The duty applies both to advice leading to treatment, and to advice about diagnosis when treatment has taken place.

The Defendant owed the Claimant a duty to advise him of the outcome of his surgery, of his prognosis and of the need for follow-up.

The High Court also decided that this duty cannot be delegated to third parties – in this case, from the NHS to a private doctor.

 

 

 

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