Help!

Cynthia is a 32 year old woman who seeks medical advice because she is feeling unwell. After several tests, she is diagnosed with cancer in her left ear, which she is told needs to be removed surgically to avoid the cancer spreading. She is not told that the operation carries a 0.2% risk of total hearing loss in that ear. She consents to the operation and the cancer is removed successfully. When she wakes up, she finds out that she has lost her hearing in the left ear and that this is irreversible. During the operation, the surgeon, Dr Jones, also damaged a facial nerve. This damage causes lasting twitches on the left side of Cynthia’s face. Dr Jones accepts that this damage could have been avoided had he used an operating technique that was introduced in 2017 and is now widely used for the type of surgery he carried out, because it reduces the risk of damage like that suffered by Cynthia. However, he suggests that many of his colleagues still use the technique he chose because it is cheaper. Several medical experts agree that they would also have used the old technique for these reasons, while others regard this as irresponsible.

A few weeks after recovering from her ear surgery, Cynthia experiences some problems with her right foot. As she is suffering from post-traumatic stress disorder as a consequence of her ear surgery, she avoids seeking medical advice for weeks, until the pain in her foot becomes unbearable. When she finally consults Dr Brown, she is told that the foot is so infected that the best treatment option would be amputation. Dr Brown also tells her that after the operation, there is a very good chance that she will be able to walk as before, though she might experience some limitations, such as not being able to run marathons. Without the amputation, the foot would become more infected and she would either need an amputation not just of the foot, but also of parts of her leg, or, in case of refusing the amputation at that point, she would in all likelihood die. Cynthia is very agitated when hearing this and tells Dr Brown that she does not want to die, but also that she does not want to live with a prosthetic foot, as one of her plans for her retirement was to train for running marathons, which so far she has never had time for. While she understands that Dr Brown thinks that she is likely to die without the amputation, she is not convinced that this is really going to be the case, as she has lost all trust in doctors after her ear surgery. She therefore refuses to consent to the amputation. Dr Brown is worried that a delay in surgery would be harmful to Cynthia, and calls her husband. He tells Cynthia’s husband about Cynthia’s health diagnosis, the recommended treatment plan and her refusal to consent to the treatment in the hope that he will convince Cynthia to consent.

Advise Cynthia as to possible actions against Dr Jones and Dr Brown.
Advise Dr Brown on the lawful course to take with regard to Cynthia’s treatment.

I’ve know the key issues and the law, I’m just struggling on how to structure it. Can someone help?

(edited 3 years ago)

Reply 1

username3689312

I'm struggling to see where you have pointed out the key issues and the law. It just looks like the scenario to me?

Reply 2

amsy56784

I put the scenario here so it was made clear as to what the question is about!

Issues: Cynthia’s hasn’t been told about the risk - non-disclosure of information
- dr Jones damaged a facial nerve - negligence
- Cynthia avoids seeking medical advice due to PTSD from previous surgery - capacity - competent/incompetent adult
- Dr Brown tells Cynthia the best treatment would be amputation - best interests
- Cynthia refuses for consent to treatment - refusal to consent
- dr brown calls Cynthia’s husband to convince Cynthia to consent - breach of confidence in relation to undue influence

As mentioned above just struggling to structure the answer

Reply 3

username3689312

So how do you think it should be structured?

Reply 4

amsy56784

Well I know the generic issue is medical negligence so I was gonna start with informed consent (issue relating to damage to left ear and facial damage). Prove whether there was informed consent by negligence principles: duty of care, breach of duty, and then causation to establish whether Dr Jones is negligent.
Use the Montgomery case to establish whether material risk should have been disclosed - link to the fact Dr Jones didn’t disclose another technique could have been used.

Then for Dr Jones, discuss capacity and beach of confidence to establish what action he can take to administer medical treatment

But I’m not sure if this is a good structure?

Then for Dr Brown I was gonna

Help!

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