Clinical negligence specialists settle claim against private surgeon for inaccurate advice on cancer risk of ovarian cyst and failure to recognise surgical injury

Posted: 01/05/2024

The clinical negligence team at Penningtons Manches Cooper has settled a claim for a female client who had unnecessary surgery due to incorrect advice about her risks of developing cancer, compounded by significant post operative issues because of the surgeon’s failure to recognise an injury caused during the procedure. 

The claimant underwent various investigations for abdominal pain which resulted in ultrasound imaging revealing the presence of ovarian cysts. She was therefore referred for gynaecological opinion to the defendant, Mr Gourab Misra, and was examined by him at his clinic in the BMI South Cheshire Private Hospital, where she underwent a transvaginal ultrasound that revealed bilateral ovarian cysts. The defendant advised that because of her age and having already gone through the menopause, she was more likely to develop ovarian cancer if she did not have the ovarian cysts removed. Due to her family history of cancer, this advice frightened her and she agreed to proceed with the recommendation of a bilateral oophorectomy. 

She alleged that that there was no proper discussion about the benefits of the proposed surgery beyond the cancer risk and no discussion about whether it would resolve her pain. No recommendations were made as to alternative options or conservative management. Furthermore, she was not advised clearly as to her increased risk of complications during the proposed surgery as a result of her previous abdominal surgery and presence of adhesions, and, in particular, the increased risk of iatrogenic injury to the bladder, bowel or ureters.

The claimant was admitted to BMI South Cheshire Private Hospital and underwent a laparoscopic bilateral salpingo-oophorectomy under the care of the defendant. His operation note records his intra-operative findings including the identification of bilateral ovarian cysts stuck to the pelvic side wall, the identification of both ureters, and that both ovaries were removed and sent for histology. There is no record that the ureters were checked for injury or damage prior to completing the surgery, despite the fact that ureteric damage is a known risk of this procedure. In fact, the claimant had sustained a transection injury to her left ureter intraoperatively but the defendant did not identify this before completing the operation

The claimant suffered with post-operative issues including abdominal pain and difficulties passing urine and gradually deteriorated. Subsequent investigations ultimately revealed the presence of the ureteric injury and she required multiple procedures to deal with the consequent problems and an extended hospital stay and recovery. She remains troubled by urinary symptoms and persistent loin pain as well as the psychological consequences of her post operative complications and extensive scarring from the multiple procedures required.   

Naomi Holland, senior associate in the clinical negligence team at Penningtons Manches Cooper, was instructed to look into the potential claim and obtained expert evidence from a gynaecological surgeon and urologist. Their evidence was supportive of a claim against the defendant and a letter of claim was submitted to him. It was argued that he was negligent in the advice provided to the claimant in connection with the management of her ovarian cysts including incorrect advice about the risk of cancer, which was not increased in the way he put to her, and his failure to properly advise in relation to the risks of surgery. It was alleged that she was not in a position to make informed consent and would not have gone ahead with the surgery had she received appropriate advice. Furthermore, the defendant was negligent in the performance of the laparoscopic bilateral salpingo-oophorectomy in not recognising the ureteric injury that had been caused.

Under the Clinical Negligence Pre Action Protocol, a response to the letter of claim should have been received within four months. Even after a year, despite various requests for extensions and assurances that there would be a response, nothing had been received. After continuing delay, the clinical negligence team started to prepare for the issue of proceedings. A final extension was requested and agreed and eventually a letter of response was received which denied all the allegations that had been made. 

Given the delays and dispute, the clinical negligence team issued and served proceedings on the defendant’s solicitors. Various further extensions were requested by the defendant but once a defence was served, he admitted that the information provided to the claimant prior to her surgery was not complete or accurate and accepted that, had she had the correct information, she would not have proceeded with the surgery at that time. At this stage, he also made an offer to settle the claim in full.

The claimant felt that an acknowledgement that she had been given incorrect advice and had gone through all of the problems she had suffered unnecessarily was the main reason for her bringing the claim and elected to accept the defendant’s offer. 

Philippa Luscombe, partner in the clinical negligence team, who oversaw the claim, commented: “This was a sad case for a very genuine claimant who had been persuaded into surgery she didn’t need by incorrect advice about her having an increased risk of developing cancer without this procedure. The impact of that incorrect advice was significant and was compounded by the alleged failings to identify the injury caused during surgery – although the injury itself was not negligent. She suffered a very traumatic and difficult time for several months post operatively and has been left with long-term symptoms as a result of these events. In this particular case, the situation was compounded by the defendant’s extensive delays in responding to the claim and initial full denial. It was frustrating that we had to issue court proceedings just to make him acknowledge his failings and settle the claim. This case is a reminder of the reliance patients put on the advice they receive from their doctors and the importance of the correct information about the risks and benefits of any procedure.” 

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