A recent judgment in a British court, in which a patient sued her doctor for failing to inform her of the risks and alarming side-effects of medication prescribed to her, affirms that doctors must inform their patients of any risks.
The patient developed a limb tremor in 2006. Her husband, a retired neurologist, suspected Parkinson’s disease and referred her to another neurologist.
The patient was treated by Dr Jonathan Frankel, from 2007 to 2012.
Frankel prescribed a dopamine agonist, but failed to disclose one of the drug’s most profound side effects: Impulse control disorder (ICD).
As a result of the medication, the patient developed compulsive behaviour and engaged in obsessive activities, one of which caused protracted insomnia. The other compulsive behaviour was compulsive online shopping: In just one night, she placed 200 bids on eBay.
Eventually, she developed psychosis, which resulted in the near collapse of her marriage.
The court held that Frankel failed in his duty to recommend the patient either reduce or discontinue the drug. If he had done so, she would have been given the opportunity to come off the drug and would not have suffered from the psychosis.
The claimant said Frankel failed to provide sufficient information about the side effects and risks associated with the drug. She also said she was not informed of any alternatives and that Frankel was in breach of duty, in failing to warn her of the material risks of ICD and alternative treatments.
Her expert, another consultant neurologist, testified that, by 2010, it was mandatory for warnings about ICD to be given to patients and that risks of obsessional behaviour occurring should have been mentioned.
But at that stage, the claimant felt her symptoms were well-controlled and she was reluctant to change treatment. She also did not believe her symptoms were problematic. She was aware there were options but chose to continue taking the drug. Her husband too was aware of the available alternatives but considered Frankel’s advice to be reasonable.
For these reasons, the judge believed it was unlikely the claimant would have opted for an alternative drug, even if she had the necessary information.
But the judge found a letter, from the patient’s nurse to Frankel, to be significant. In it, the patient expressed concern to the nurse, who then wrote to Frankel, mentioning other side effects she was experiencing - which indicated ICD. She told Frankel she had suggested the patient come off the drug but she was reluctant because she “felt good” on the drug.
The judge found Frankel ought to have taken the letter more seriously and discussed her symptoms at the next consultation, and that Frankel was liable for the harm caused, as a result of ignoring the letter.
Later, another doctor established that the patient did not suffer from Parkinson’s after all.
Frankel’s misdiagnosis of the patient was not criticised but the court held that Frankel’s actions fell below the required standard of care and that factual causation had been established between the defendant’s breach of duty and the losses suffered by the claimant, despite the defendant having acted in good faith. The quantum of damages is yet to be determined.
Natasha Naidoo, an associate at Norton Rose Fulbright, says patients are entitled to know exactly what options are available to them in terms of treatment.
“It’s very important full disclosure is made in terms of the prevailing guidelines, rules and legislation. This is also endorsed by the World Health Organisation,” Naidoo says. “It might be that the patient is suffering from an illness or condition that is psychosomatic in nature and is already experiencing symptoms similar to the side effects of taking the prescribed drug. Doctors, nevertheless, need to inform the patient of the side effects associated with taking a drug or that taking a drug might exacerbate an existing condition.
“Healthcare professionals need to familiarise themselves with the guidelines, rules and the prevailing legislation. Doctors sometimes neglect to inform patients of the nature or extent of the harm or risk involved for various reasons.”
Naidoo said, in this matter, the patient’s perception of her condition at the time could have been altered. She might have felt fantastic but she experienced concerning behavioural changes, which might otherwise not have occurred.
“Patients are sometimes unable to properly understand and retain information. This could be due to the condition they are suffering from. Where this is the case, it is important for doctors to discuss with patients the possibility of bringing a friend or relative to the consultation. Doctors need to communicate with patients and keep them informed regarding changes in their conditions - they also need to do follow-ups with patients, if necessary. It is vital that the doctor records all communications with the patient, clearly and accurately. In this case, the patient consulted with the doctor on an ongoing basis and it was not a once-off visit.”
She says, in South Africa, with a multilingual population, there might be a language barrier - so it’s critical that explanations are given in plain language and in a language which the patient understands.
“Many patients might not be aware of their rights and that they are entitled to ask questions. Patients need to be provided with information concerning diagnosis, proposed treatment, the manner in which the treatment is to be carried out and the risks associated. Patients must also be informed of any alternative options that might be available to them.”