Tacit Consent

This case is about a lady in her mid-50s who visited her GP and it was determined that she required some blood tests.? She was sent to the clinical room at the practice.

Two nurses were present in the room, one a senior nurse from the practice and another a student nurse.? Both introduced themselves to the lady and she was asked if she had any objections to the student nurse taking her blood as she was in training and the lady had “good veins”.

She replied that she did not mind, sat down in the chair and held out her arm.? The trainee made one attempt to place the needle in the vein, but she missed.? The needle was immediately removed, and no further attempts were undertaken by the trainee.? The senior nurse obtained access easily to the vein and removed the appropriate bloods.

Unfortunately, following this incident, this lady developed swelling, although not bruising, at the front of the elbow associated with a lot of pain.? This gradually calmed down over a few months, but she was left with constant pain in the elbow, particularly on bending it more than 90 degrees.? Scans did not show any evidence of a retained foreign body such as part of the needle.?

An action in negligence was taken against the practice and when I saw her she was more than six years after the injury.

Examination revealed spot tenderness to which she could point and no other abnormality.? On the balance of probabilities, the problem was due to some damage to the ligament at that level, complemented by some scarring involving damage to the smaller nerves innervating the area around the elbow joint.

The question is, was this a negligent act?? In terms of consent, this lady was clearly asked if she minded a student nurse taking her blood as she was a trainee.? She gave her verbal consent, sat down in the chair and extended her arm.? She allowed the nurse to prepare the area and to insert the needle, which was carried out on one occasion.? There were no repeated attempts by the trainee.? When the trainee missed the vein, even though it was an obvious structure, the procedure was taken over by the senior nurse who withdrew the blood.? There was therefore no question of multiple attempts by the trainee.

The fact that the vein was, and remains, obvious, would indicate to a supervisor that this would have been a suitable case on which a trainee could learn if consent was given, which it was.? Unfortunately, the nurse missed, and it is agreed that some damage occurred to some of the deeper structures in what is a most unusual case.? However, a trainee missing a vein is not a negligent act and would be regarded as a complication of taking blood since it can happen to even the most experienced doctor.? It is also important to note that no repeated attempts were made.? Therefore, there was a duty of care but it was not breached in this case and the unfortunate, agreed, complication would not be regarded as consequential damage related to a breach of the duty of care.? An action in negligence would therefore be most unlikely to succeed.