Transurethral Resection of the Prostate, also known as ‘TURP’ is an operation where the internal part of the prostate gland is removed using a telescopic electric knife.
It typically needs two to three nights in hospital, with very low risks of major bleeding, impotence or incontinence. However the risk of dry orgasm (often called “retrograde ejaculation”) is very high.
TURP can be done using two systems of electricity – monopolar and bipolar. With monopolar diathermy there is a small risk of TURP syndrome when the hypotonic irrigation solution is absorbed from the prostate into the bloodstream.
This can be a very serious complication leading to neurological, cardiac and pulmonary dysfunction and even death. This condition does not occur with bipolar TURP.
Mr T, a 61 year old man with moderately bothersome urinary symptoms was seen by a urology consultant (MrX) after GP referral in 2020. A prostate relaxing drug had been trialled in primary care without success.
After basic tests, it was decided that surgery to remove a moderately enlarged prostate should be carried out. Transurethral resection of the prostate (TURP) was recommended. The patient was warned in the letter of the risks of “bleeding, retrograde ejaculation, impotence, incontinence.”
No other options were offered for treatment.
Surgery was carried out using a monopolar resectoscope, in April 2021, and was complicated by a drop in the serum sodium requiring emergency treatment in the intensive care unit for one night. 27 grammes of prostate tissue were removed at the time of surgery.
After four days with a catheter, Mr T was sent home passing urine on day five.
Three months after the operation he was voiding well and had a significant improvement in symptoms. However he had a dry orgasm which both he and his 47 year old wife found disappointing. On discussing this with a friend who had been treated with an alternative technique without the side effects experienced, he sought legal advice.
Points of Harm
After urological expert opinion, a claim was raised on two points of harm.
First, that the low sodium necessitating ITU treatment (TURP syndrome) was a non-negligent complication of the surgery, but one that did not exist with a number of other treatments. There was no criticism of the management of the TURP syndrome.
Second, that the resultant dry orgasm was again a non-negligent complication of the surgery, but would have been absent or reduced by other treatments.
In defence the Mr X stated that monopolar TURP was his preferred choice of surgery and had been so for many years. He stated that it was the only option available at the NHS centre where the claimant had been seen, and furthermore that he did not believe in much of the data for alternative treatments so had not offered them.
The expert’s report stated that a number of alternative options recommended by NICE at the time of surgery would have mitigated or avoided the complications complained of.
First, had bipolar resection been used, the TURP syndrome and ITU stay would not have happened. This would also have been the case with all the alternative options for treating this man’s prostate.
Second, a number of alternative options including Urolift (prostate opening stitches) REZUM (prostate steam treatment) and GreenLight laser prostatectomy (a laser operation replicating TURP) would have reduced or abolished the risk of the dry orgasm. It was pointed out that the beneficial results for each of these techniques vary somewhat, but that all were at the time of the surgery recommended by NICE and available at other nearby NHS Trusts.
The Medicolegal Case
Mr T’s solicitors argued that the consent process failed the test of Montgomery v Lanarkshire where “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo..” since no alternatives seem to have been proposed or discussed. Had the alternatives been mentioned, even with Mr X being made aware of their possibility at another hospital, he would likely have chosen an alternative treatment on safety and complication grounds.
They further argued that the consent was invalidated by the decision in Thefaut v Johnston that consent could be invalidated by a surgeon understating the risks, or overstating success rates, given that certain risks would have been lower with other procedures.
Mr X’s counsel advised that the claim relating to Montgomery would be difficult to defend at trial, but that the argument relating to Thefaut would be robustly defended. The case was settled, without admission of liability, for less than £10,000.
This scenario, while a urological surgery case, relates to many specialties. Patients now have access to limitless information on alternative options (proven and otherwise) yet may not be given choices when they are offered treatment.
This may be linked to local availability, personal physician preference (or prejudice) or NHS versus private treatments.
Where an elective course of action is being considered, it seems likely that not at least discussing recognised alternatives will potentially invalidate consent, regardless of whether they are locally available. Whether this extends to treatments available only privately, or those available within an NHS network is unclear and has not been tested in court.
However it seems that arguing, after Bolam, that a reasonable number of practitioners would not offer a NICE approved treatment or operation, and therefore not discuss it as an option, is unlikely to be a valid argument in consent cases. How the changes in the required quality of consent will impact on everyday clinical practice remains to be seen.