Clinical Negligence

Damages recovered following discography

Oliver Chapman, specialist clinical negligence acting for the claimant successfully obtained an out of court settlement of £367,532.74 to compensate the claimant for their pain and suffering and to pay for their future care needs.

This claim arose following a facet joint injection and provocative discography treatment provided by Nuffield Health in December 2016.

Provocative discography is an imaging-guided procedure in which a contrast agent is injected into the nucleus pulposus of the spinal disc.

Needles are inserted through the back into disc near the suspect area, guided by imaging.  Fluid is then injected to pressurise the disc and any pain responses are recorded.

This is repeated in random order for the various discs, without the patient knowing which disc is pressurised.  This can be used to detect patients who may be exaggerating their symptoms, or to assess their pain response and hence their suitability for recovery from possible surgery.  It is intended for use in patients who have not responded to extensive conservative non-surgical treatment including spinal diagnostic procedures which have failed to elucidate the primary generator of pain.

The claimant, Mr M, had been a maintenance worker at a local school.  He was hard working and committed to his role.

He had suffered intermittent back ache in 2010.  He had experienced a stress related problem in November 2004 and a panic disorder in December 2006.

In November 2013 a one year history of lower back pain was noted, with deterioration, and symptoms developing down the legs over the course of a few days.

Physiotherapy failed to produce an improvement, acute back spasm and lower back pain persisted.

Significant pain led to a hospital admission in February 2014.  An MRI scan identified a large L4/5 prolapse with left S1 nerve root involvement.  There was left leg pain.  Surgery was not indicated as Mr M did not have any abnormal neurological signs.  He was taking high dose medication.

Two months later, after much conservative rehabilitation, including regular swimming, Mr M returned to work in April 2014.  In early 2015 the low back pain worsened.  There was some bowel incontinence leading to an urgent referral to the Tunbridge Wells Hospital.  An updated MRI scan identified significant improvement compared to the previous MRI of February 2014 when there was no significant spinal canal, lateral recess or neuroforaminal narrowing.  However, Mr M was increasingly low in mood.  A pain management condition was diagnosed of facet joint syndrome.

There was a flare up of low back pain in December 2015, with ongoing sciatica and muscle spasm.

Mr M was seen in the Nuffield Health’s pain management clinic by a consultant in pain management and spinal intervention in February 2016.  Escalation of pain killers had continued.  The consultant felt that on the basis of the most recent MRI scan the disc had remodelled itself, but there was minor disc bulge and some minor facet joint arthrosis throughout the lower lumbar spine.  His suspicion was that in the absence of a substantive prolapse Mr M’s main problem was facet joint dysfunction.

Mr M underwent a lumbar facet injection in March 2016, but the low back pain worsened.  He was struggling to manage manual work.

Mr M was reviewed by the consultant two weeks later.  The consultant believed that the disc was largely resolved, but there were nodic changes around the disc margin.  The consultant wanted to challenge the disc with provocative discography.  However, he reassured Mr M that the wear and tear in the spine was relatively benign and the condition would settle.  Mr M informed the consultant that he did not want to have any form of surgery.  The consultant explained that the planned procedure would be an investigative procedure to check the state of Mr M’s disc by injecting a dye, which Mr M understood to be minimally invasive.  Mr M asked the consultant if there were any risks and the consultant responded “no”.

On 11 April 2016 Mr M’s GP referred him to West Kent Primary Care psychological therapy services, in respect of moderate depression and psychological difficulties associated with medically unexplained symptoms, proffering a diagnosis of depression secondary to chronic pain.

Mr M underwent provocative discography under the consultant at Tunbridge Wells Nuffield Health on 25 April 2016.  The medical records were sparse and the consent form setting out that there were no significant, unavoidable or frequently occurring risks and the operation note simply read “post-tissue+++, repair IDET”.

In the litigation, it was Mr M’s case that:

  1. he was not warned of there being any risks of provocative discography;
  2. the person who went through the consent form with Mr M was not the treating consultant.  That person did mention that there was a 10% chance of the procedure working, but did not elaborate on that;
  3. no future procedures had been mentioned prior to the provocative discography, in particular there had been no mention of IDET;
  4. Mr M believed that he had been sedated in the course of the provocative discography procedure; and
  5. Following the provocative discography, Mr M had significantly more pain with spasm in his back causing shaking in his torso and right leg.

On 5 May 2016, due to the escalation of these symptoms, Mr M attended the Nuffield Health Hospital and demanded to see the consultant.  The consultant’s note of that date simply stated “IDET”.

That day he wrote to Mr M’s GP noting that Mr M was struggling a great deal with low back pain, suggested a change in medication and informed the GP that Mr M was on the waiting list for repair of a disc tear.

On 19 May 2016 Mr M saw psychological services who documented that he felt his future had been taken away from him, that he was suffering regular shakes and spasms, he tried to avoid leaving the house and he felt depressed, angry, let down and embarrassed.

On 25 May 2016 Mr M attended A&E at the Tunbridge Wells Hospital with back pain and a history of two fainting episodes.  He was advised by an NHS pain consultant that the procedure was outdated, it was no longer used within the trust, should not have been undertaken and that there was no tear in Mr M’s back.

On 8 June 2016 Mr M received a telephone call from Nuffield Health reminding him to go ‘nil by mouth’ as he was due to undergo an IDET procedure the following day.  He had no prior knowledge of an IDET procedure, did not have any correspondence setting out what the procedure involved, and felt that the consultant was now trying to fix the damage caused on 25 April 2016.

When he did not attend the surgery, he was immediately discharged by the consultant.

Claimant’s case

Mr M instructed us and we sought to obtain evidence from experts in pain medicine, psychiatry and orthopaedic and spinal surgery.

We argued that on the basis of the medical records, the consultant failed to undertake a clinical examination and evaluation of Mr M’s medical history, prior to a decision as to whether or not to provide back injection on 3 March 2016.  Back injections were not recommended by the NICE guidelines.

However, the very significant increase in pain occurred following the discography on 25 April 2016.  That procedure was carried out without consideration and recommendation of watch and waiting or further treatment options including combined psychological and physiotherapy intervention and/or a pain management programme.

Indeed, the consultant did not explore Mr M’s mental health issues whatsoever.  A history of depression was noted in the document provided by the GP to the consultant, but he did not apparently take any consideration of them.

We argued that he was negligent for failing to obtain informed consent.  He stated that there were “nil” risks when in fact the incidents of complications was not insignificant.  Had Mr M been properly advised as to the risks and benefits he would not have proceeded with the provocative discography.

Furthermore, the consultant failed to provide Mr M on any plan

following the provocative discography.  If the intention was to offer Mr M IDET, then that should have been communicated to him as part of the consent process for provocative discography.  Had IDET been explained to Mr M, he would have refused to undergo IDET, thereby rendering the provocative discography otiose and potentially harmful in any event.  We also argued that provocative discography was not a procedure recommended by NICE at that stage.

Indeed, the consultant had recommended the provocative discography against the background of him writing himself that “Meanwhile I have tried to reassure him that these things usually settle and his wear and tear profile is relatively benign.”  Mr M’s disc was therefore in the consultant’s view likely to improve on its own.

He failed to consider the increased risk of occurrence of pain complications of provocative discography for Mr M in light of his three year history of back pain, increasing use of medication and psychological vulnerability.

We acknowledged that Mr M had intrusive back pain and muscle spasms which pre-dated the consultant’s involvement by some six years.

The very serious increase in pain and psychiatric symptoms came by reason of the 25 April 2016 provocative discography. Following that intervention Mr M suffered poor mobility, severe observed disability and abnormal gait.  He used two crutches.  He had a wrist strap on both wrists because of carpal tunnel syndrome.  He shook violently and shifted place constantly.  He used incontinence pads and wore a lumbar belt with TENS machine.

The differential psychiatric diagnosis was adjustment disorder with depressed mood and anxiety and a somatic symptom disorder with predominant pain.  The abruptness and severity of pain relating to the discography together with related social and occupational consequences precipitated (adjustment disorder) or worsened (somatic symptom disorder) the current psychiatric symptoms.

We acknowledged that the discography had not caused any orthopaedic or neurological damage.  Mr M’s symptoms were due to important psychological factors leading to severe, disabling chronic pain.

The defendant denied liability and also argued that Mr M’s psychological vulnerability was such that he would have experienced the same deterioration given the absence of the provocative discography within 12 months.

We recognised that there was some risk that the chronic pain may have resulted in future deterioration leading to a negotiated settlement of £367,532.74.

Oliver Chapman specialises in clinical negligence cases.  If you would like to ask him a question about a potential case, or if you have a general query about any personal injury, contact Oliver at Thomson Snell & Passmore solicitors on 01892 701234 in confidence.

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