Obtaining written confirmation of factors when considering surgery.

A Case Example

In this case, the Patient was a 10-year-old child (considered skeletally immature) with chronic ankle instability who was under the care of the orthopaedic team for continued issues. An MRI scan and ultrasound scan were taken of the ankle. Subsequently, an arthroscopy with ligament reconstruction was recommended and undertaken by an experienced orthopaedic surgeon who was not a paediatric specialist. The operation was not a success and the Patient required further surgery and physiotherapy. The Patient received post-operative physiotherapy treatment, but the surgeon had not advised physiotherapy prior to the operation, as he believed there had already been extensive physiotherapy treatment which had not been successful in stabilising the ankle joint and therefore surgery was required.

The surgeon stated that he understood the Patient had undergone extensive physiotherapy treatment prior to considering surgery, but there were no written notes to this effect nor physiotherapy records or referrals for physiotherapy in the Patient’s medical records, so it is assumed that he only had verbal confirmation.

The surgeon was experienced in performing the ankle surgery on adults but had never treated a child for this condition. He sought the opinion of a paediatric orthopaedic surgeon to confirm that his proposed surgery was reasonable on a child and had written notes and correspondence confirming this. Some of the correspondence was copied to the Patient’s parents.

Main Learning Points

  • By not obtaining written confirmation of physiotherapy treatment prior to surgery, the surgeon had relied on verbal evidence and was unable to provide written confirmation, thereby making him vulnerable to the accusation that he had not advised physiotherapy first. Had he known that physiotherapy had not been tried, he would certainly have recommended it before resorting to surgery.

  • The correspondence to the paediatric orthopaedic surgeon requesting advice was an essential component to the adult surgeon’s defence in proving duty of care had been followed.

  • There is no evidence that physiotherapy and support footwear would be successful in children in stabilising the ankle joint with the damage revealed in the MRI scan. It is highly likely that surgery would have been required, even after undergoing extensive physiotherapy.

  • The surgeon was an experienced ankle surgeon and had performed this particular operation many times on adults. The fact that this surgery was not successful on a child may have had the same outcome if a paediatric surgeon had performed it.

Reducing the Risk of Litigation

This case would probably have been able to be defended in Court successfully. However, TMLEP still recommends the following:

  • Clinicians do not rely on verbal evidence and always obtain written confirmation of facts material to their decision-making.

  • Document all steps taken to ensure Duty of Care. (In this case, the documentation relating to the consultation with the paediatric specialist and copying to the Patient’s parents).


The clinician was able to show he undertook proper Duty of Care by documenting his correspondence to the paediatric specialist and copying to the parents. He had also documented that he had clearly understood that the child had undergone extensive physiotherapy prior to the surgery which was ultimately unsuccessful and therefore advised that surgery would be necessary. He also clearly documented in the consent form that the risks of the surgery not successfully curing the ankle instability were significant, so that consent to surgery was adequate.