Case summary | Plaintiff denies consent for muscle biopsies

by | May 25, 2020 | Health Blog

Judgment was entered for the defendant health service, with costs payable by the self-represented Plaintiff, after the Court found that she had, in fact, consented to a procedure in which biopsies would be performed.

The background

The Plaintiff had symptoms of proximal muscle wasting of the lower and upper limbs associated with muscle weakness and she was referred to the Neuromuscular Clinic at Royal Prince Alfred Hospital (Hospital) for review and management. The Plaintiff alleged that her consent had only been given in relation to the left deltoid and not the left vastus at a date prior to the surgery.

At her initial consult at the Clinic on 11 February 2015, the records showed ‘muscle bx (biopsy) (L) deltoid/vastus’ and the Neurology Advanced Trainee gave evidence that he was confident, in accordance with his usual practice, that he explained to the Plaintiff at this appointment that it was necessary to biopsy two sites because she was experiencing both upper and lower body muscle weakness. The subsequent documentation confirmed a request for a muscle biopsy of the left deltoid and vastus.

At her Pre-Admission Clinic on 23 March 2015, the anaesthetist completed a form whereby he handwrote ‘muscle biopsy left deltoid + vastus’.

On the day of surgery on 7 April 2015, the Plaintiff was interviewed for the purpose of admission. The Junior Medical Officer responsible for admitting patients for elective surgery gave evidence that he would have, in accordance with his usual practice, had the hardcopy medical file and referred to the procedure being a biopsy of both the left deltoid and left vastus as was described repeatedly in her records. In the ‘Request/Consent for Medical Procedure/Treatment’ form the JMO had handwritten ‘biopsy L deltoid + vastus muscles’ and the Plaintiff had signed it confirming that she consented to the relevant procedure.

The issue

Whether the Plaintiff gave valid and effective consent for the muscle biopsies prior to the defendant performing that procedure.

  • If the answer were yes, then no other issue would arise.
  • If the answer were no, then the medical procedure constituted an unlawful assault as per Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218.

The findings

The Court held that it was apparent from the printed pro forma documents that the Hospital had in place an elaborate system of checks that were required to be undertaken and recorded for all surgeries to verify that informed consent had been given.

The Court accepted the evidence that the relevant doctors had in accordance with their usual practice conscientiously applied this system of checks.

In finding the Plaintiff to be a witness unworthy of credit, the Court noted that with her “everything is in dispute, whether it matters or not, and no matter how firmly it may be established by other evidence and by concordance with surrounding circumstances. The plaintiff’s assertions and denials cannot be relied upon, because her approach is one of blanket denial disengaged from any endeavour to present the truth”.

In conclusion, the Court found that the Plaintiff had consented to the biopsy on both the left deltoid and vastus prior to the surgery, and as no other issues arose, entered judgment for the Hospital, with costs.

The full judgment Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475 can be read here.

Emma Jack

Emma Jack