Ms. Saber underwent an operation on 2 September 2013 to remove a tumour from her abdomen. This was carried out following general anaesthetic and an epidural. When she awoke from the procedure she could not move her legs and, whilst there has been improvement since then she continues to suffer weakness in her legs, has difficulty walking and can only manage a few steps without assistance. Ms. Saber maintained she had not been warned of the risk of paralysis and that no alternative to epidural such as patient-controlled analgesia had been suggested. She also alleged that the consultant anaesthetist had introduced a harmful substance into her spine – possibly Chlorhexidine, an antiseptic.
In her witness statement made in July 2018, the claimant made it clear that she was unable to remember whether the anaesthetist, Dr. Robin, had explained the risks of an epidural. However, she was clear that “paralysis” was not mentioned, and neither was the possibility of having to use a wheelchair. Dr. Robin relied upon her contemporaneous notes which confirmed that an epidural was explained to the patient and she had agreed to it. Further, her evidence was that Ms. Saber had been informed of possible nerve damage, producing weakness in the legs which could in some cases be permanent.
Turning to the allegation of Chlorhexidine being introduced into the spine, Dr. Robin confirmed she had used this substance to sterilise the patient’s skin. However, she allowed it to dry before inserting the epidural needle.
Six expert witnesses gave evidence in court. The anaesthetists agreed that whilst it was mandatory to offer full disclosure of risks, it was not usual to mention the word “paralysis” because this is vague as a concept and unnecessarily frightening. Instead, terms such as “nerve damage”, “weakness” and “numbness” might have been preferable.
The trust maintained that the patient’s outcome had been caused by a very rare reaction to Bupivacaine, used in epidural anaesthesia. The expert neurologists agreed that post-operative changes in the patient’s CSF (cerebro-spinal fluid) were indicative of an acute toxic or immunological reaction, most likely due to a substance introduced at the time of anaesthesia. The claimant’s expert said there were no features which enabled him to offer an opinion as to whether Bupivacaine or Chlorhexidine was the more likely cause, but the trust’s expert opined that the clinical characteristics were more consistent with a reaction to the former.
Anaesthetic experts had concluded that the notes regarding anaesthetic risks constituted a reasonable summary of what should have been provided to the patient. They agreed that use of the word “paralysis” was not required. There was nothing to suggest the notes had been falsified. Whilst the claimant had done her best, after nine years, to give honest evidence her recollection was far from perfect.
As to causation, there was no direct evidence that Chlorhexidine had been introduced into the patient’s epidural space, although all the causation experts agreed this was a possible cause. The court was not persuaded that there was a sufficient basis, on the balance of probabilities, to conclude that there had been a toxic reaction to this substance. Rather, a reaction to Bupivacaine was more consistent with the claimant’s medical presentation.
Accordingly, the Recorder concluded that the claim had not been made out and therefore entered judgment for the trust.
This case illustrates how difficult it can be for a claimant to sustain allegations of lack of informed consent nine years after the event. Memories fade and recollections can change. Equally, for the clinician facing such allegations, it can be very problematical to mount a convincing defence – often they have to rely solely upon contemporaneous notes. Here, fortunately for the anaesthetist, these were good and rebutted some of the claimant’s main contentions.
The claimant’s team also faced problems in proving causation because they had no clear evidence that Chlorhexidine was actually the cause of the reaction, even though it was a possible cause. Whilst such an outcome with Bupivacaine was exceptionally rare it had been documented in medical literature and the claimant’s symptoms matched those other cases. The judge therefore had little difficulty in concluding that causation had not been demonstrated on the balance of probabilities (i.e. more than 50%).