Mrs H, a 54-year-old gardener, had been complaining of left shoulder pain for several weeks. It had become gradually worse, affecting her normal daily activities and causing her significant sleep disturbance.
As Mrs H’s shoulder became progressively stiffer, she was referred to Mr Z, consultant orthopaedic surgeon. Mr Z made a diagnosis of frozen shoulder, and sought to manage this conservatively with nonsteroidal analgesia and physiotherapy treatment.
Unfortunately, after three months, Mrs H’s symptoms had not improved. After suitable verbal counselling, Mr Z administered an intra-articular steroid injection and reviewed Mrs H two weeks later. Again, Mrs H’s pain had not improved, and her range of movement remained severely restricted. Mr Z discussed the option of surgical management with Mrs H, explaining that he could perform a shoulder arthroscopy and manipulation under anaesthesia. Mr Z documented in the hospital notes that he had a “long chat” with Mrs H as a way of informing her of the implications of the planned procedures, although he did not write down what possible complications were discussed.
The patient underwent the combined procedure. Mr Z confirmed the diagnosis of frozen shoulder, also identifying some rotator cuff degeneration. He performed a debridement of the rotator cuff as well as a subacromial decompression, injecting a mixture of local anaesthetic and adrenalin as part of his standard practice for this procedure. It all went uneventfully and the patient was discharged home the following day.
Although the mobility on the affected shoulder improved, the pain became worse. Mr Z suspected a possible injury to the axillary nerve that could have accurred at the time of the manipulation under anaesthesia or during the arthroscopy. He asked Dr N, a colleague neurologist with special interest in nerve injuries, to review Mrs H.
Dr N could not find any neuropathy or evidence of nerve injury to explain the increasingly severe shoulder pain. Mrs H made a claim against Mr Z on the basis that there had been nerve damage during the operation, causing her worsening pain. She alleged that Mr Z had not warned her that this was a possible complication of the surgery. She also claimed that had she known of this surgical risk, she would not have had the procedure.
An expert commissioned by Mrs H supported the thesis that during the manipulation under anaesthesia an excessive force was used, resulting in nerve injury. The expert also stated that on the balance of probabilities, had the patient known this risk, she would not have had the procedure. He supported this on the fact that no written consent, including risks, benefits and alternatives, was given to the patient. He concluded that Mr Z had acted negligently.
On the other hand, an expert on behalf of MPS stated that if the patient had a nerve lesion, this was most likely to have been present prior to surgery. He said that even if this injury occurred during the procedure, this was such a rare event that Mr Z could not be found negligent. Given the strength of our defence expert’s opinion the case was taken to trial and the court found in favour of Mr Z. He was able to rely on a causation defence.
- Unforeseeable adverse outcomes, while deeply regrettable, are not always negligent.
- Informed consent is a fundamental part of the decision-making process between the doctor and the patient regarding treatment options. Most regulatory bodies across the world have specific guidance on consent. To ensure consistency in practice, it may be worth considering the use of informed consent templates for specific procedures. A template for a specific procedure may be helpful as an aide memoire, but it is not a substitute for a conversation with the patient.