Mrs W, a 58-year-old business manager, consulted Mr D, an orthopaedic surgeon, with exacerbation of her chronic back pain. She had a history of abnormal clotting and had declined surgery three years earlier because of the attendant risks. An MRI scan confirmed degenerative spinal stenosis for which Mr D recommended an undercutting facetectomy to decompress the spinal canal while preserving stability. On this occasion, Mrs W agreed to the proposed procedure. Surgery was uneventful, and she was discharged home on the fourth postoperative day.

At her outpatient review 11 days later, Mrs W complained that she had been unable to open her bowels and that she had also developed a swelling at the wound site, from which Mr D aspirated “turbid reddish fluid”. Suspecting a dural leak, Mr D undertook a wound exploration, which confirmed that the dura was intact. At the same time, a sacral haematoma was evacuated. In the two years following surgery, Mrs W was seen by Mr D and several other specialists complaining of ongoing constipation, urinary incontinence and reduced mobility which, although atypical, was thought to be due to cauda equina syndrome.

Mrs W brought a claim against Mr D, alleging that she had not been advised of the risks of the surgery and that no alternative options were offered to her. Furthermore, she claimed that had she been properly advised, she would have declined surgery, as indeed she had done in the past. She also alleged that Mr D failed to arrange appropriate postoperative monitoring such that her developing neurological symptoms were not acted on, and that she should have undergone an urgent MRI, which would have revealed a sacral haematoma requiring immediate evacuation.

Expert opinion

An orthopaedic expert instructed by Medical Protection made no criticism of the conduct of the surgery, but was very critical of the poor quality of Mr D’s clinical records. Although Mr D was adamant that the risks of surgery and alternative treatment options were discussed with Mrs W, he made no note of this in the patient’s records nor did he make reference to any such discussions in his letter to the GP. Furthermore, despite Mr D’s assertions that he reviewed Mrs W every day postoperatively prior to her discharge, he made no entries in the records to this effect, stating that he had relied on the nurses to do so. The nursing records did not corroborate this.

The claim was predicated on the basis that Mrs W suffered from cauda equina syndrome and that earlier intervention to evacuate the haematoma would have improved the outcome. In the expert’s opinion, there was insufficient evidence to support a diagnosis of cauda equina syndrome, hence it was unlikely that earlier decompression would have made a difference. However, the absence of documentary evidence of her postoperative condition made it very difficult, if not impossible, to rebut this claim.

In any event, Mrs W would have been successful in her claim if she could establish that she was not properly advised of the risks and alternative options, and that if she had been she would have not proceeded with the surgery. This is because, on the balance of probabilities, the complications she suffered would not have occurred had she been counselled properly. The absence of any record of the advice given, coupled with the documented reasons for her earlier refusal of surgery lent significant weight to Mrs W’s claim.

On the basis of the critical expert report, the claim was settled for a substantial sum. 

Learning points

• Good clinical records are essential to the ability to defend a doctor’s actions in the event of a claim.
• An appropriate clinical note should be made by the attending doctor or explicitly delegated to another appropriately skilled healthcare professional.
• Patients are entitled to expect they will be advised of all relevant and material risks of a proposed treatment and of any alternative treatment options (including no treatment). Any advice given should be clearly documented.

Further reading

Medical Protection: An Essential Guide to Medical Records 
Medical Protection: Consent-the Basics  
GMC: Consent Guidance