Patient information about prior infection risks of a cardiac surgeon

BMJ 2014: 348  in a news article by Clare Dyer reports:

A cardiac surgeon at the centre of the world’s worst recorded outbreak of prosthetic valve endocarditis need not tell his future patients of his history when he returns to full practice, a High Court judge has ruled.


The decision referred to is that of Lu v Nottingham University Hospitals NHS Trust [2014] EWHC 690 (QB), where the court addressed the issue of patient consent at [82] onwards. Two key excerpts are as follows:

[83] By way of background, the Trust had obtained legal advice from leading counsel in November 2012 and disclosed that advice to Mr Lu. The advice was that the need to inform a patient of the risks of undergoing a procedure includes an obligation only to inform of the present risks of the procedure. The advice was that the courts had not held that there was an obligation to inform a patient of historical issues. Counsel advised that if the evidence of all three experts were that the Mr Lu posed no greater risk to patients than his colleagues, then there would be no justification for requiring the disclosure of any additional information. If the experts were not unanimous, then it may be necessary to consider an alternative way forward…

[89] In my judgment, the Trust Board accepted that Mr Lu was no greater risk than any other cardiac surgeon in the Centre. That is clear from the fact that the contrary view, expressed by Dr Fowlie, was not the view of the Board and he was recorded as dissenting. Furthermore, in my judgment, the Trust Board did not consider from the Trust’s perspective, that any greater or enhanced consent process was necessary in relation to Mr Lu. The Trust Board did not, for example, resolve that the re-entry programme was to be conditional on surgeons with whom Mr Lu would be working during the re-entry period (or Mr Lu himself) volunteering the history as part of the process of obtaining consent. The logic of the Trust Board decision is that, from the Trust’s perspective, the information that needed to be provided to patients would be the same in Mr Lu’s case as in the case of other cardiac surgeons. That is the logic of the decision that Mr Lu, so far as the Trust Board is concerned, presents no greater risk than any other cardiac surgeon.

With thanks to Associate Professor Cockburn (QUT) for highlighting this decision.