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Consent and Re-operation

posted 3 weeks ago

A slightly overweight 29-year-old individual was injured while participating in martial arts. This resulted in back pain radiating down the left leg as a sciatica. There was no numbness around the perineum, nor were there difficulties with urination or bowels.

The pain persisted and he underwent an MRI scan, which showed a protrusion of the L4/5 disc along with some early degenerative changes in the lumbo-sacral area.

Initially, the patient was treated by a physiotherapist. The back pain remained, but the sciatica disappeared.

Approximately one year later, the sciatica returned, again with no other symptoms. Physiotherapy was attempted but was unsuccessful. An orthopaedic surgeon reviewed the situation and suggested a back operation to decompress the disc. A warning was given at the time that in 70% of cases there would be a positive, though possibly not complete, outcome; in 20% of cases there would be no change; and in 5% to 10% of cases there may be a deterioration in the condition, possibly requiring further surgery.

The patient declined treatment at that time, but upon review following another six months, they agreed to have the surgery.

This was carried out three months later. Unfortunately, the sciatica persisted, and a second laminectomy was carried out after four months, with a wider exposure and clearance of dense scar tissue around the S1 nerve root. Post-operatively, the patient had a tendency to foot-drop.

Legal action was commenced against the orthopaedic surgeon. The patient complained that full consent was not given to the second procedure, as they had not been warned at that time their condition could deteriorate, even though there was an acknowledgement that they had been warned in the consent to the first procedure.

There were two issues: consent, as well as the performance of the surgery.

The patient had been getting worse after the first procedure. They had been clearly warned that this could happen, and there was no evidence of sub-standard surgical care. Although it wasn’t specifically mentioned on the second consent form – which simply stated that the patient understood the risks of the surgery and had the opportunity to ask any questions – it was agreed there had been full disclosure with the first surgery and, therefore, the patient was, or should have been, aware that the same risks applied.

The case was withdrawn after two years.

MDU figures for 2022 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44(0)28 87724177 or email [email protected]


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