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Patient's claim rejected despite consent concerns

Morag Smith, BJuris, LLB, Special Counsel, Civil Claims, Avant Law

Sunday, 2 July 2023

Patient's claim rejected despite consent concerns

Chronic pain can significantly impact quality of life, including psychological well-being. When medical intervention fails to help, the patient can look for someone to blame, with treating doctors being the leading candidates.

As this case* demonstrates, when a patient accuses a doctor of negligence, having detailed medical records is essential for a successful defence. It also demonstrates that claims can be defended if there is no evidence that the medical treatment caused any damage to the patient.

A routine procedure

A patient suffered a neck injury at work and was diagnosed with disc protrusion at C6 on her right side, impinging on the C6 nerve. Her GP referred her to an experienced radiologist to perform a nerve root sleeve injection (NRSI).

Before the NRSI, a nurse completed a diagnostic informed consent form with the patient, confirming her consent to the procedure and indicating that she understood the risks, including potentially life-threatening allergic reactions, bleeding, and infection. No warning was given about the risk of nerve damage.

The radiologist Avant member performed the NRSI under CT guidance. The patient tolerated the procedure and there were no immediate complications – she was not in any pain or experiencing any weakness, numbness, burning or other neurological symptoms.

Later the same day, the patient attended her GP complaining of severe pain radiating from her neck and down her arm. Within a week the pain reduced, and her symptoms were like those experienced before the NRSI. She reported that following the NRSI there was partial relief of her pain.

Six weeks later, the patient’s GP referred her to an orthopaedic surgeon, and she went on to have a C6-7 hemilaminectomy, microdiscectomy and spinal rhizolysis for C6-7 disc protrusion. The patient was okay two weeks after the operation, but her pain returned.

Neither the patient nor her GP requested any clinical advice or further treatment from the member.

Allegations follow corrective surgery

Two and a half years later, the patient accused the radiologist member and the GP of negligence because she suffered complications from the NRSI, including nerve damage that required further surgery. She alleged the member and the GP:

  • failed to explain the nature of the injection and the risks associated • didn't suggest the option of ongoing conservative management
  • exposed her to risks that could have been avoided.

Medical records provide clear evidence The GP's records indicated that prior to the NRSI the patient was suffering from neck pain, which restricted her physical abilities, and imaging suggested C6 irritation.

The GP's referral to the radiologist indicated the test required was a “Nerve Root Sleeve Injection Right C6” to treat neck pain.

The member’s records clearly document there were no complications during or immediately after the NRSI, and the images show the tip of the needle was adjacent to the C6 nerve root – it did not touch the nerve.

Pre-operative imaging shows disc protrusion that appears to compress on the right lateral recess behind C6, which could have been impinging on the C6 nerve root.

Based on the presenting symptoms, the member had no cause to consider an alternative injection or treatment.

Expert evidence supports member

A pain specialist and a radiologist reviewed the imaging and noted the needle was inserted a bit deep, however, they believed it was unlikely the member hit the root nerve. If this had occurred, the patient would have experienced immediate and severe pain. They also confirmed the images did not support the patients' claim that the NRSI damaged her C6 nerve root.

The patient’s expert witness evidence was that the pain became worse after the NRSI, however they did not say that it caused the increase in pain.

Duty of care not breached

To make a successful claim for damages, the patient had to satisfy the court the member had breached their duty of care and caused an injury, which they could not. The imaging and expert evidence proved the NRSI was administered correctly, and the needle did not enter the patient’s nerve root. The case against the radiologist and the GP was dismissed.

Consent a contentious issue

Although the consent form was signed by the patient, the nurse did not warn the patient of the risk that her symptoms may be exacerbated as a result of irritation of the nerve root following the NRSI, or that she could suffer a permanent nerve injury. Our expert radiologist witness expressed the view that the risks of nerve damage were material and that all patients should be advised of this possibility before undergoing NRSI.

If the patient had suffered a nerve injury as the result of undergoing NRSI, and she had not been warned of this material risk, a court would likely find that informed consent had not been obtained.

Key lessons

There will be times when the treatment you provide does not meet a patient’s expectations, especially if they are suffering from ongoing pain issues.

While the member was at risk due to the poor consent process, the claim failed because the patient could not prove the NRSI caused her ongoing pain or meant she required further surgery.

Take care when delegating consent, and make sure you are confident fully informed consent has been obtained.

Make sure the delegated person has the appropriate skills, knowledge and information to conduct and record the consent process effectively.

Where there is uncertainty about the consent, reiterate the process with the patient.

Even when a risk is rare, it doesn’t mean it’s reasonable not to warn a patient, particularly if it could have a significant impact.

Defence process

In cases like this, an important aspect of the evidence is how the actions of the doctor involved are viewed by their peers. Central to the defence of the member involved Avant finding suitable expert witnesses to assess and advise on the clinical aspects. A radiologist and pain specialist were sourced to review the imaging and their expert witness evidence, along with imaging in the medical records, were key in refuting the claim the NRSI was the cause of the patient's ongoing pain issues.


Avant factsheet: Medical records - the essentials

This article was originally published in Connect  issue 20.


Avant routinely codes information collected in the course of assisting member doctors in medico-legal matters into a standardised, deidentified dataset. This retrospective analysis was conducted using this dataset. The findings represent the experience of these doctors in the period of time specified, which may not reflect the experience of all doctors in Australia. This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision-making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published. © Avant Mutual Group Limited 2023.

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