K.H. v. Malmöhus Läns Landstingskommun

NJA 1990 s 442 – Målnummer No. 40
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Kerstin H. had an operation intended to lessen pain in her hip, however after the operation she still suffered from the original ailment as well as new pain. Prior to the operation, Kerstin H. had been informed that the doctors aimed “to clean up the area around the nerve” (the doctors had also used such terms as the “loosening” of a nerve or “nerve-shaving”) but not that the doctors might be cutting the nerve fiber and that cutting the nerve fiber could lead to new kinds of pain.

It was not disputed that a cutting a nerve was associated with a significant risk of damage nor that the cutting of the nerve fiber in the instance of Kerstin H’s surgery was a medically appropriate decision (necessitated by the state of the nerve found by the doctors during surgery). The scar tissue that would form after closing the surgical site would have made it impossible for the doctor’s to cut the nerve at a later time (after they had obtained Kerstin H’s specific consent).

The county council (the Council), as the employer of the doctors, argued that the written permission given by Kerstin H. prior to the operation “must be considered to include the right of doctors to take the action during the operation time that is medically justified and thus that she consented to the procedure.”

The lower court found that the doctors used such terms as “relaxing” and “nerve-shaving” to mean cutting, that it was “disputed if the surgery represented so little risk of significant problems in proportion to the expected benefits that Kerstin H. needed to be informed about all possible actions and provide prior consent” and that the doctor’s actions “were justified given the prevailing circumstances and [the doctors] were entitled to assume consent was granted to cutting the nerve.”

On appeal, the County Court overturned the lower court’s ruling, noting that a patient must be fully informed of all treatment options and their effects and risks (unless such risks are very minor). Considering that cutting the nerve was associated with a significant risk, that Kerstin H. was not properly informed that the surgery could involve cutting a nerve,  and that she might not have allowed the surgery if she had been informed about the risk, the doctor’s failure to provide such information was negligent.

The High Court held that medically-justified steps fall within the scope of general consent to a surgery. Because it was undisputed that cutting the nerve fiber was an appropriate step for the doctors to have taken at the point in the surgery when they made such decision and because it would not have been able to cut the nerve at a later time, the doctor’s decision to cut the nerve fiber was justifiable and there were no grounds for a cause of action in negligence against the Council.

“It is clear that certain actions require explicit consent and other related necessary measures during an operation must fall within the scope of consent relating to the procedure itself. The distinction is influenced by several factors such as predictability, the ability to pre-specify all the different options, potential consequences, available actions of more or less intrusive nature, the patient’s stated wishes and the ability to obtain clear consent for the measure prior to an operation.”

“Consent to an operation is not generally considered to cover all medically appropriate steps which intend to cure the patient’s illness or ailment. On the other hand, it is clear that further medically justified steps fall within the ambit of general consent to surgery.”