Good record-keeping wins trial

Facts

On 1 June 2010 the claimant attended the dermatology clinic at the Wirral University Teaching Hospital NHS Foundation Trust, for Psoralen Ultraviolet A (PUVA) treatment for his skin condition. The treatment involved soaking a wad of gauze with psolaren solution and applying it to his leg. The claimant said that, during the treatment, the dressing began to lift up from the area on his leg and so he patted it down with his bare right hand.

Later that evening, he felt a tingling on his right hand and the next day it was red and swollen, like a burn. Over the next few days, the burn spread over the claimant’s shoulders, his left arm, back, abdomen and legs. 

The claimant initially said that he suffered a phototoxic reaction, likely caused by going out into the sun following the treatment. However, it was later argued that this was in fact a contact reaction. 

The claimant’s case

The claimant’s initial case was that there was a failure to warn him:-

• of the phototoxic risks of psolaren;
• to avoid touching the psolaren; and
• to avoid exposure to sunlight. 

The allegations were amended shortly before the trial to include an allegation that the dressing was improperly applied if the edges started to lift up, requiring him to pat them down.

The defendant’s case

It was argued that the claimant had been warned not to go out into sunlight following the treatment and that he was aware of the phototoxic risks. This was clearly detailed on the consent form and then again on the forms used by the nurse when administering the treatment, all of which were signed by the patient.

There was no requirement to warn the claimant not to touch the dressing, as the psolaren solution used requires around 15 minutes soaking into the skin before it becomes absorbed enough for a phototoxic reaction. The reaction he suffered was extremely rare.

The trial

At trial, the claimant’s dermatology expert confirmed that he did not know of any guidance which advised nurses or clinicians to issue a warning not to touch the gauze. He was not able to point to a body of responsible dermatologists who would have given the warning and in fact had never given the warning himself. 

Despite this, he argued that on the basis of the reaction the claimant sustained, a warning should have been given and ought to be given in the future. He conceded that if a warning had been given, this would be to prevent a phototoxic reaction (which the claimant did not suffer from) and that the chance of this occurring was minimal from simply touching the gauze. He accepted that he was not in a position to comment on how the dressing was applied and whether this amounted to a breach of duty, as this was more within the area of a dermatology nurse.

The defendant’s dermatology expert confirmed that she would not have given a warning not to touch the dressing and that she was entirely supportive of the treatment. Whilst she agreed with the claimant’s expert that the application of the dressing was strictly speaking outside their area of expertise (and was a nursing issue), she commented that there is a range of practice as to how dressings are applied and she would assume that most nurses use their best judgement. In the vast majority of cases a dressing will not be applied perfectly, as it is very difficult to do so. This does not mean that every imperfect dressing is negligent. 

Judgment

The excellent record-keeping in relation to the consent process meant that the allegations surrounding a failure to warn the claimant to avoid exposure to sunlight had to fail. 

The claimant was also unsuccessful in proving that a warning not to touch ought to have been given and that the dressing was applied incorrectly. The Trust had researched guidelines and protocols into these two areas and found nothing to suggest that their methods and consent process were incorrect.

Ultimately, the claim was dismissed as the claimant was unable to prove his case on breach of duty. The judge was complimentary about the quality of the notes and the clear evidence given by the witnesses for the Trust.

Lessons to be learnt?

This case highlights the importance of good record-keeping in relation to consent. This can often be crucial in order to successfully defend a claim. If the consent forms had not been detailed and well completed, breach of duty in relation to a failure to warn would have come down to the nurse’s word against the claimant’s, which can be a difficult position to be in.