Does a Surgeon Have to Carry Out a Procedure Demanded by a Client if it is in His Field of Expertise?

This case involves an extremely overweight gentleman with significant co-morbidities, who presented with some tightening of his foreskin and a swelling around one testicle, known as a hydrocele. He wished to have a circumcision. The surgeon refused on the grounds that it was not an emergency, or even urgent, and the client’s underlying condition meant that anaesthesia could be dangerous. He had been advised to lose weight and offered an appointment with a dietician, which he refused. Several years later, the client went to another country, where the surgery was successfully carried out. He therefore wished to sue the original surgeon for the expense involved in flying to another country, having to pay for accommodation and the cost of the surgical procedure, believing it was medical malpractice due to lack of treatment over several years.

A patient may request an elective procedure by a surgeon, but there is absolutely no obligation on the surgeon to agree. Further, the doctor is under a duty of care to take into account all the circumstances and, in this case, such a procedure could carry significant risk, which was fully explained. The patient did not make any attempt to mitigate his underlying risk, but found someone else in another country who was willing to proceed, which was entirely that doctor’s decision.

In summary, a doctor is under no obligation to perform any procedure unless it is in an emergency situation when they are under a duty to mitigate any risks involved. If a doctor reasonably refuses treatment, or if the patient refuses to follow his advice, there is no cause in a medical negligence action. Similar situations may arise, for instance in heavy smokers, who may require a lung transplant or heart surgery, or those with a heavy alcohol intake, who have destroyed their liver and wish to be considered for a liver transplant.

MDU figures for 2021 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email rpeyton@rpeyton.com

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