Damages for ophthalmic surgery performed without patient consent

This case involved a significant breach of duty when a private ophthalmic surgeon performed surgery that our client had explicitly told him she did not want.

Our client was in her late 60s with a history of problems including giant cell arteritis, a condition in which arteries in the head become inflamed and which can lead to loss of vision. She was prescribed steroids for this condition.

She began to experience deterioration in her visual acuities and sought advice from her treating ophthalmic surgeon, who diagnosed a macular hole. He referred her to a colleague for treatment. The consultant whom she then saw confirmed this diagnosis and advised our client that she needed surgical repair. He explained to her that she required a vitrectomy to remove the vitreous gel from the centre of her eye and then to repair the macular hole by sealing its edges back into position.

The surgeon also explained that the vitrectomy and macular hole repair would almost certainly result in her developing a cataract. He therefore advised her that it was usual to combine this procedure with surgery to remove the natural lens in the eye, by a process known as phacoemulsification, and then to replace that lens with an intra-ocular implant (or IOL).

Our client was concerned that the steroids she was taking for her giant cell arteritis would inhibit the natural healing process, as is known to occur. She discussed this with her consultant. She considered his advice, but expressly told him that she did not wish to have both the macular hole repair and the lens replacement combined in the same operation. Instead, she insisted she would have lens replacement as and when a cataract later developed.

In the event, when the surgeon came to perform the vitrectomy and macular hole repair, he did perform phacoemulsification and fixed an intra-ocular lens implant at the same time, despite our client expressly withholding her agreement to lens replacement.

Post-operatively, our client experienced significant deterioration in her left vision, which fell to 6/60.

We obtained her notes and records and investigated her care. It transpired the consent form that she had signed included references to both phacoemulsification and IOL. This gave rise to a factual dispute as to what had been agreed by our client pre-operatively. There was separate correspondence shortly following the surgery in which the surgeon apologised for proceeding with lens replacement despite our client’s earlier refusal.

We obtained expert evidence as to the damage caused by the decision to proceed with lens replacement. Subject to succeeding in establishing our client’s version of events and that she had not agreed to IOL, the expert confirmed that if she had had vitrectomy and macular hole repair alone, she would have avoided lens replacement at that time.

The expert confirmed, however, that she would inevitably have needed IOL, within not more than two years of the macular hole repair. Her vision would have deteriorated in the meantime and when she came to the inevitable lens replacement, his opinion was that she would have suffered considerable blurring and loss of visual acuity. He also considered her overall outcome following lens replacement was likely to have been the same as she had in fact experienced. The extent to which she would have enjoyed improved vision was therefore limited in time. During that period, however, she had lost confidence because of her lost vision. She felt unable to resume driving and this in turn had a marked effect on her, including emotionally and socially, leaving her distressed by the outcome she had suffered.

We presented the claim to the surgeon on the basis of the expert evidence we had obtained and our client’s account that she clearly refused consent to proceed with phacoemulsification and IOL when the vitrectomy and macular hole repair were done. While the surgeon has made no admissions either as to performing IOL without our patient’s consent, or the damage caused to her as a result, we have been able to resolve her claim for modest damages without the need to issue court proceedings.

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