The scene

A patient developed a pre-Achilles tendon bursitis and was referred for a steroid injection. The patient saw a radiologist MDU member, who had a special interest in ultrasound guided injection treatment.

The member undertook scans and discussed the planned procedure with the patient. The injection treatment was administered successfully, but three months later, the patient suffered a recurrence of the same symptoms again and saw a consultant rheumatologist.

The rheumatologist referred the patient back to our radiologist member, who found a persistent left pre-Achilles bursitis.

The radiologist undertook further scans and again obtained verbal consent for the procedure. A further steroid injection was performed, this time deep to the paratenon of the Achilles tendon. Shortly after the procedure, the patient left hospital and suffered a full thickness Achilles rupture.

The claim

The radiologist was notified of a clinical negligence claim. The solicitors' letter alleged that on the balance of probabilities the rupture of the Achilles tendon was the result of injecting local anaesthetic and steroid around the tendon on two occasions. It was also alleged that the patient was not warned about, and wasn't aware of, the risks of tendon rupture before either of the procedures.

The MDU obtained a report on breach of duty from an independent radiologist expert. The expert's opinion was that the procedure was relatively safe and the member's treatment was reasonable and logical. The expert also commented that the published evidence of outcomes following corticosteroid injection of the Achilles tendon suggests that the risk of rupture is around 1:1,000*. The expert pointed out that the patient was referred for the procedure by a senior consultant rheumatologist, who also advised that this was an appropriate course of treatment.

In relation to consent, although the radiologist said a discussion with the patient about risk and benefits took place, this wasn't documented. The expert remarked that there was no evidence in either of the ultrasound reports that the patient was consented for the risk - albeit a small one - of rupture.

MDU response

Based on these findings, the MDU was able to serve a letter of response denying liability on behalf of the member. However, the patient's solicitors issued and served proceedings alleging that the radiologist did not seek consent from the patient in relation to both procedures.

The radiologist agreed that despite verbally warning the patient of the risks and benefits of both procedures, this hadn't been documented. This meant that for both parties there was a risk that the case would not be totally proved or disproved - the doctor could not prove that he consented the patient and explained the risks of rupture, while the patient claimed that had he been made aware of the risk, he would not have consented to the procedure.

Because the judge would have to decide whom to believe and the potential risk this posed to the case, the MDU sought consent from the radiologist member to settle the claim without admission of liability.

Damages were negotiated and agreed at £12,500, but the legal costs were settled for almost five times that amount.

Summary

This claim illustrates well the importance of recording discussions about consent. The GMC guidance on consent promotes patient autonomy, requiring doctors to involve patients in decisions about their care and that information given to the patient must be presented comprehensively and accessibly.

The courts have now endorsed this approach when considering issues of consent in clinical negligence cases. In the recent case of Montgomery v Lanarkshire Health Board, the Supreme Court held that it was a doctor's duty to discuss 'material' risks inherent in treatment with patients.

The court now considers the risk to be 'material' if a reasonable person in the patient's position would be likely to think it significant. The doctor also has a duty to disclose any risk he or she knows (or should reasonably have known) to be of significance to that particular patient.