Consent is a conversation
Ms A, a former professional dancer, was referred to Dr R, a registered medical practitioner specialising in osteopathy. Following an examination, he diagnosed ‘lumbar instability’, which he treated with back-strengthening exercises and manipulation.
Three weeks later, Ms A’s condition had deteriorated and she was noted to have reduced straight leg-raising on the right and weakness of L4 and L5. Dr R diagnosed a possible prolapsed disc and performed a caudal epidural.
As Ms A did not improve, she was referred to Mr N, a consultant neurosurgeon. He arranged for an MRI to be performed; this showed no evidence of a prolapsed disc, so he suggested continuing with physiotherapy.
Ms A’s condition continued to deteriorate despite further spinal manipulations and, in the following two months, Dr R gave three sclerotherapeutic injections without obvious benefit. He suggested another caudal injection, which he performed a month later. During the injection, Ms A became agitated and her heart rate increased to 180 beats per minute. Dr R diagnosed a panic attack and suggested rest.
Shortly after this episode, Ms A informed the clinic where the epidural had been performed that she was very upset by the symptoms she had experienced; she initiated a claim.
Ms A obtained an expert report from Dr G, who stated that Dr R had no formal training in epidural injection or epidural pain relief; that he had no resuscitation equipment immediately available and appeared to have had no training in resuscitation and that he had failed to obtain informed consent.
Another expert opinion obtained by the claimant from Mr B, an osteopath, stated that Dr R’s treatment had been ‘protracted, unnecessary and unreasonable’.
A further opinion obtained from Dr M, a psychiatrist, stated that Ms A was suffering from a mixed anxiety disorder, precipitated by the epidural injection. However, Dr Q, a psychiatrist acting for MPS, although agreeing that Ms A had suffered a panic attack, thought that she had a pre-existing anxiety disorder.
MPS also obtained further expert opinion from another GP and osteopath. Although agreeing that Dr R’s notes could be criticised, he felt that, on balance, the osteopathic treatment and the decision to perform a caudal epidural injection were reasonable.
A conference was held with counsel attended by Dr W, a consultant in anaesthesia and pain management. It was agreed that Dr R’s decision to perform a caudal, in the absence of firm evidence of sciatica, could be criticised, as could the lack of resuscitation equipment and the absence of documentation showing that Dr R had discussed the possible complications of the caudal with Ms A before carrying it out.
Ms A obtained further expert opinions from Dr D, a consultant in anaesthesia and pain management and Dr M, a consultant psychiatrist. The latter was of the opinion that Ms A’s psychological deterioration following her caudal injection meant that she was unlikely to return to full-time employment at any time in the future. Dr Q, the psychiatrist acting for MPS, disagreed and felt that Ms A would benefit from a return to work.
At a further conference with counsel, it was concluded that there was a less than 50% chance of defending the claim; the main weaknesses in the defence were the lack of firm indication for the second caudal injection and the absence of resuscitation equipment.
- A treatment plan should be discussed with the patient before treatment is started. If the initial treatment plan is not successful, revisions should be discussed with the patient and be documented.
- Evidence for the efficacy of epidural injections of steroids for low back pain is equivocal, and should be discussed with the patient before treatment.
- Consent to treatment is a process that includes explanation and discussion about risks and benefits. The substance of these discussions should be documented, otherwise it would be difficult to prove that they took place.
- Resuscitation drugs and equipment should always be available and the practitioner should be able to demonstrate that he/she is competent to use them. See Recommendations on the Use of Epidural Injections for the Treatment of Back Pain and Leg Pain of Spinal Origin (March 2002) published in the Royal College of Anaesthetists’ Bulletin (Issue 14, July 2002).
- Advanced life support guidelines by the European Resuscitation Council are available on their website at www.erc.edu/.
- See Samanta A and Samanta J, Is Epidural Injection of Steroids Effective for Low Back Pain?, BMJ 328: 1509–10 (2004).